Three, relatively recent appointees to the First District Court of Appeals discussed their experiences serving on the court, described their decision-making processes, and shared their thoughts on crafting stronger, more persuasive briefs at a luncheon sponsored by BASF’s Appellate Section on September 30.
The writing advice Justices Marla J. Miller, Therese M. Stewart, and Jon B. Streeter dispensed that afternoon at the City Club of San Francisco jibed with that of the leading experts and dovetailed with themes presented in this column recently and over the years.
Make it Clear and Keep it Brief
Justice Miller said advocates should not feel obligated to write to the maximum allowable length. “Brevity and clarity are really prized,” she said. “Take the time to make it short.”
Justice Stewart said briefs should be laid out “in a way [judges] can understand.”
Make Use of Substantive, Point Headings
Headings, she advised, should be used “not only to break up the flow, but to explain the relationship between different arguments.”
Bryan Garner made a similar point in his September 1, 2015, article in the ABA Journal called, appropriately enough, “Good Headings Show You’ve Thought Out Your Arguments Well in Advance.”
According to Garner, substantive point headings, that is, “full sentence propositions that advance a major premise (law) or a minor premise (fact), or sometimes both,” “are the most important part of the argument section in a brief.”
Avoid Alphabet Soup
Like Garner, Justice Stewart urged brief writers to avoid the use of acronyms, as they can be confusing and distracting.
Keep it simple and don’t make noise
She told attendees to keep the organization and treatment of issues simple and straightforward. “Don’t get too complicated on us,” she said.
And present only the strongest arguments. “Don’t throw in something extra just because you think it might stick,” Justice Stewart added.
Go Straight to the Standard of Review
Justice Streeter said a good brief must address the standard of review “first thing.”
“What is the lens we will be employing? Is it clear error? Abuse of discretion? De novo?”
Furthermore, he said, “Don’t deal with [the standard of review] in just a broad brush, template kind of way.” Brief writers should not merely quote the correct standard of review; they should show how the standard should be applied to their particular arguments and facts and identify the ultimate conclusion the judges should make.
Justice Streeter said he values briefs he can use in the future “as reference material for a particular area of law.”
And Focus on the Facts
All three justices called for special care to be taken in the presentation of facts.
“Let the facts win,” Justice Stewart said.
“Represent the facts fairly,” Justice Miller counseled.
“Steep yourself in the facts,” advised Justice Streeter. The court favors “briefs that treat the record very carefully and accurately.”
About the author:
Savannah Blackwell is a former news reporter who covered government and politics for more than a decade, mostly in San Francisco. She became a licensed California attorney in 2010 and specializes in legal research and writing. She can be reached at firstname.lastname@example.org. Follow her on Twitter at @SavannahBinSF.