An interview with Judge Rebecca Glasgow
COLUMN > Write to Counsel
BY BENJAMIN S. HALASZ
During a recent visit to the University of Washington, Judge Rebecca Glasgow of the Washington Court of Appeals, Division II, sat down with UW School of Law Professor and Write to Counsel columnist Ben Halasz to talk about persuasive brief writing that “coaches” judges to reach the result you want. What follows is an edited transcript of the conversation.
Moving from practice to being a judge
Q. Before you joined the court, Judge Glasgow, you had been an assistant attorney general. Are there writing techniques you developed as a practitioner that you find yourself using now, in drafting opinions?
A. One key technique is an understanding of what kinds of principles appellate judges might turn to in a difficult case. In many cases, the law only gets you so far, and the court could go either way. In those cases, I think that judges tend to return to some fundamental principles or values. Some examples are things like: we want the law to be predictable; we want everyone to have their day in court, so we value procedural fairness; if a purpose of the law we’re interpreting is to protect a particular party or community, we want to fulfill that purpose in our interpretation; we want to stay in our lane both vertically and horizontally, meaning we want to respect the role of the factfinder below us who saw witnesses testify, for example, and we want to respect the policymaking and enforcement roles of other branches of government.
This isn’t a comprehensive list, obviously, but I think that those kinds of fundamental principles are the things that judges tend to turn to when a case could go either way.
Q. If you could go back in time and talk to your advocate-self, what advice would you give?
A. I didn’t spend enough time studying the briefing of the advocates I respected the most. If I could do it again, I think I would have stacked those briefs on my desk and taken some time to re-read them and then kept them around so that I could pick them up and just try to absorb more from them.
Organization
Q. How important is the organization of a brief to making it persuasive?
A. I don’t think anything is more important. If I get a well-organized and well-structured brief, my job is so much easier. The days when my job is soul-sucking are the days when I get briefs that are sort of walking me through a meandering stream-of-consciousness analysis, where I can tell it’s a first draft and the attorney didn’t really think hard about how they were going to put it together, and it makes my job exponentially harder.
That’s OK, I’m willing to do the work, but the chances of you being persuasive diminish exponentially if I can’t easily see the path that you want me to take to get to the result you want.
Q. Is there specific advice you have for organization?
A. Before you start writing anything, sit down with just a pen and legal pad and think: If I’m the judge and I need to write an opinion that will get to the result that I am advocating for, what do I need to do? What are the legal steps that I need to take, starting with how the issue is framed and ending at the conclusion? Show me what that opinion should look like.
Then, don’t start writing yet. Outline what the opinion looks like if you lose, and figure out the most effective barriers to writing the opinion that way.
Taking these two prewriting steps will put you in the mindset of coaching me on how to get the opinion that you want, and coaching briefs are the most valuable ones to me.
The chances of you being persuasive diminish exponentially if I can’t easily see the path that you want me to take to get to the result you want.
In addition, the specific place where the structure tends to fall apart is in the application of the law to the facts. I think a lot of people just don’t do that part. Sometimes they skip it, they just jump to the conclusion. And sometimes those are the people who are too smart for their own good, so smart that it’s obvious to them how the law they’ve recited leads to the result they want in this case. But sometimes, if you don’t spell it out, a non-expert generalist who has to read fast like me might not understand it. The other mistake that people make is they just re-recite the facts. And then they write the conclusion and they think that’s what application is. That’s not what it is. It’s explaining how the law should be applied in these particular circumstances.
Q. I teach the IRAC [Issue, Rule, Application, Conclusion]/CRAC [Conclusion, Rule, Application, Conclusion] structure. Do you like to see it?
A. IRAC/CRAC structure is really important for the Court of Appeals in particular. If you look at our opinions, Division II is very formulaic in how we write, and I challenge you to find a Division II opinion that doesn’t adhere to an IRAC/CRAC structure.
Our best briefs will always use the IRAC/CRAC/ICREA [Issue, Conclusion, Rule, Explanation, Application] structure because those advocates understand that’s how we write our opinions, and they are coaching us on how to write the opinion in the way that will make them win. In the best and most efficient briefs, I could label each paragraph in the analysis according to which job that paragraph is doing: issue framing, rule statement, explanation of the rule and how it has been applied in other cases, application to these facts, and conclusion.
Q. Are there any other tips you have for attorneys about organization—things that you like to see or you dislike seeing?
A. One of the challenges that can break up that IRAC/CRAC flow is responding to an opponent’s arguments. Often, there’s so much in an opponent’s brief that has made you angry and you want to respond to it. It’s sometimes really hard to figure out how to structure your brief so that you can make sure that you’re hitting all of the points and you’re not missing any counterarguments, but also to present a cohesive picture of what the analysis should be.
The best solution is to create a subsection or paragraph at the bottom of each main analysis section in your brief that raises and dismisses counterarguments. For example: “The other side is relying on State v. Smith, but that case is completely irrelevant for two reasons … .” And you’ll notice in our opinions we often have a “raise-and-dismiss” subsection or paragraph after we’ve provided our main analysis.
Authority
Q. One issue that often comes up in brief writing is how to use the different types of cases you have. For instance, how heavily should I rely on persuasive authority? How do you see that effectively addressed in briefs?
A. At the Court of Appeals, I’m bound by what the Washington Supreme Court says, and so controlling authority is really going to be front and center in our analysis—whether you want it to be or not. Facing the music is better than not. For overall persuasiveness, the people who hide from their biggest problems are the ones who most often lose.
As far as persuasive authority versus controlling authority, I’m always happy to hear more about persuasive authority. One way to coach me on how to write the analysis in the way you want is to show me how other courts have done it. And remember, under PRP of Arnold,11 In re Pers. Restraint of Arnold, 190 Wn.2d 136, 410 P.3d 1133 (2018). I am allowed to depart from other panels of the Court of Appeals, whether they’re in my division or not, although there are really good reasons why I would hesitate to do so. But in almost all cases, it is fair game to ask me to depart from a Court of Appeals case, as long as you’re explaining why. And remember, you’re coaching me on how to explain why I am departing from my colleagues if I adopt your argument.
Facts
Q. What do you look for in the parties’ descriptions of the facts that make them particularly reliable?
A. I am a huge fan of attorneys who understand what the worst facts are for their case. Rather than not mentioning them or mischaracterizing facts, the best attorneys confront hard facts head on. Acknowledging a bad fact conveys an implied promise that the attorney is going to deal with it in the analysis. And that sets me back on my heels as a reader. Instead of wondering, “Well, how are they going to handle that?” I’ve got this assurance, “We’ve got this, no big deal.”
Something that can get you into real trouble is mischaracterizing the record, because the law clerk and judge who are assigned to write the bench memo for the rest of the panel are going to read the record. I’m still amazed when people are willing to mischaracterize either the facts or the law, because that assumes I and my law clerk are not going to do our job; but worse, it impacts your persuasiveness in all of your cases, because now I’m suspicious of you.
Your facts sections should not rehash your notes on how the record reads from start to finish, walking through what each witness said in the order they testified. That is not as helpful to me as a cohesive story that pulls facts from various parts of the record. Telling a cohesive chronological story is far better than marching me through the record from page one to page 3,000.
A final downfall can be including too many details that are unimportant and not enough of the details that are important. When I’m reading the facts, I’m trying to figure out which of these details is key to the analysis. Authors of the most persuasive briefs don’t bog me down in details like precise dates that I don’t need. When they do drill down on precise details, they signal to me that this is something I need to focus on.
Advice for New Attorneys
Q. I’m sometimes asked by newer attorneys or law students, what should I be doing to improve my writing? What would you say to those newer lawyers?
A. Honestly I would tell them to take time to think about structure and application.
I also recommend focusing on the introduction, [which is] a great opportunity that few people do well. Your introduction is the place for you to tell me what you understand the crux of the case to be, and then provide a snapshot of how you’re going to solve that problem.
I also think you should develop multiple checklists in your practice. For example, when I had Professor [Eric] Schnapper for Civil Procedure in law school, he taught us how to build a checklist of all of the procedural bars that could be raised in a civil case. Every time you come across a new procedural hurdle, you can write it down on your checklist. Similarly, I can imagine that some of the best criminal defense appellate attorneys probably have checklists that they work through for things that they’re looking for in the record.
I recommend checklists, partly because the most heartbreaking thing for us as appellate judges is to see clearly how an appellant could have won, but they didn’t bring the right argument and our hands are tied. Everybody is super busy and it’s easy to miss something when you’re moving fast, so quickly reviewing a checklist is some of the best practical advice I can give.
Further reading
Q. There have been thousands of books and articles about persuasion. Obviously we’re just touching the surface here. Is there a favorite book or article about writing you recommend to people who want more detailed treatment?
A. I spend a lot of time with both Point Made: How to Write Like the Nation’s Top Advocates and Point Taken: How to Write Like the World’s Best Judges, by Ross Guberman, in part because those books have so many concrete examples and I learn best from reading samples.
Q. I’ll be sure to check those out again. Thanks so much for chatting with me!
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NOTE
1. In re Pers. Restraint of Arnold, 190 Wn.2d 136, 410 P.3d 1133 (2018).