Brief Writing 101

An appellate lawyer in a big firm got his hand slapped by a 9th Circuit judge for his firm’s choice of words in a brief.

Some examples:

“The district court’s refusal to apply Daubert was erroneous and stands as yet another example of the court’s twisting the substantive law in furtherance of the procedural class action device.”

“The district court’s failure to apply this elementary principle is grounds for reversal.”

“The District Court Eliminated Wal-Mart’s Defenses And Otherwise Altered Substantive Law In Concluding That The Class Is Unmanageable” Id. at 35. (This text was in a section heading, in bold text and up-style capitalization.)”

“The district court tried to sidestep the obvious lack of commonality inherent in plaintiffs’ theory of the case.”

See more at Minor Wisdom, whose author collected the above examples. The post has a link to the entire brief.

Bottom Line: Judges are human. Every judge has some level of respect for other judges. Every appeal is by definition a public statement that you disagree with one or more decisions of a lower court and the judge or judges on that court, but one can disagree with a decision without attacking a judge. A ruling is “inconsistent with established precedent.” A decision is “an unwise extention of current law.” A holding “lacks support in current case law.” The judge’s interpretation of a statute is “strained.” This phrases offend no one – expect perhaps the judge (or judges) you are challenging, but even that is rare in my experience. Most judges know that their papers may be graded upstairs and that it is the job of the appellant to persuade the appellate court to reverse.

All of us can learn from this experience.