Writing Tips From the Bench: Knowing When Less Is More

A Conversation with Ninth Circuit Judge Morgan Christen

COLUMN > Write to Counsel

WRITE TO US > If you have a question about legal writing that you’d like to see addressed in a future “Write to Counsel” column by UW Law writing faculty, please submit it to wabarnews@wsba.org, with the subject line “Write to Counsel.”

Q. Thinking back on some of the best appellate briefs that you have encountered, what is it that makes a brief unusually or especially persuasive?

A. Clarity and brevity. Briefs that are clear and efficient are the most effective and also the most persuasive.

Q. Speaking of brevity, how often do lawyers submit briefs that actually don’t use all the available space?

A. Not often enough. Briefs are often too long and very repetitive. I don’t know why that is.

Q. Have you ever read a brief, gotten to the end, and thought to yourself, “This was so good, I wish I had another 10 pages to read”?

A. [Laughing] No. I was in private practice, so I understand people charge many, many thousands of dollars for these briefs, and sometimes clients want something heftier. I sometimes think that’s also true in a courtroom. It’s very gutsy for a lawyer to recognize he or she [is] winning an appellate argument, and that it would be a good idea to sit down and stop. Very often they can’t bring themselves to do it because their clients are watching and have an expectation their lawyer will do something other than sit down. I understand that. But to answer your question, I think clarity and brevity are certainly elements of the most helpful briefs, and I think a clear and concise argument is a real sign of strength and persuasiveness.

Q. Is “especially persuasive” the same as “especially helpful”? Are they the same thing for you?

A. Well, often they are, but there are other things lawyers can do to be helpful but that aren’t really persuasive. You know, we typically have 28, maybe even 30 cases in a week of oral arguments. So that’s just a lot of volume. Sometimes people do things that, if they are missing, I would assign to my law clerk. Things like preparing lists of acronyms; timelines; or charts, graphs, or other devices to help us manage the volume and get up to speed more quickly. When lawyers include those things in their briefs, they can be very, very helpful, whether they are persuasive or not.

Organization

Q. Do you have any tips for lawyers about organization and structure; things that you and your colleagues like or don’t like seeing—things like introductions, summaries of arguments, subheadings, tables, photos, and bullet points?

A. Well, I can’t speak for all my colleagues, and it is good to remember that we have a very large bandwidth these days—two or three generations are represented on my court. And I think legal writing evolves over time. Different fads come and go. I think you know that I’m a fan of Bryan A. Garner. He makes a lot of great points, but not all my colleagues follow the same rules. Broadly speaking, I think my colleagues and I would agree that a summary of the argument usually is very helpful, something that signposts upfront where we’re going.

I also think there’s been a real change over the course of my career in the extent to which judges use and rely on a table of contents as scaffolding. It’s very important structurally. And I spend some time reading that up front. It helps me to see how the party has built their argument, and how they’re responding or not responding to the opposing party’s argument. So I would prefer that people not use the table of contents as an afterthought, but really use it as a critical piece of structure. By the time I get into the meat of the argument, my view is that I should have heard what the litigant’s points are in the table of contents, and in the summary of the argument, and in the topic headings. That structure should be clear before I really get to the first paragraph of the discussion and analysis of the issues.

Q. Is the table of contents the very first thing that you read when you look at a brief?

A. Yes. And I often look at the table of contents of the opening brief, and then the table of contents of the opposing brief, so I can line up what’s happening and what’s at issue.

Q. Do you always read the briefs in the order in which they are submitted?

A. The first thing I read is the order on appeal. The staff attorneys prepare what they call an inventory sheet, and that tells me which issues are on appeal. That is very helpful because, of course, from the order appealed, often only two of five issues are pursued. After that, I read the briefs in the order in which they were filed.

Q. Some legal writing gurus say, “Put your conclusion at the start of an argument, and then argue down from the conclusion.” Or they’ll say, “No, it’s premise, premise, premise, and then conclusion.” Is there a particular approach that you think is more helpful?

A. There’s certainly one that’s more persuasive to me. I’m not a proponent of starting with a conclusion. For me, that reads like an unsupported assertion. It makes me immediately suspicious. I’d much rather see—to use your language—premise, premise, premise, that yields to the conclusion. That’s much more persuasive and that’s what I teach my clerks to do.

FACTS 

Q. When we teach law students about writing briefs, the part that is, for me at least, most difficult to teach is writing the statements of facts. Students intuitively seem to have a better grasp of legal arguments, but fact statements are challenging. What do you look for in a description of the facts that will then make it resonate as credible and persuasive and reliable?

A. I think it’s interesting that you have more trouble teaching how to write a statement of facts than the legal analysis. That’s fascinating.

Q. They learn how to write the law in a variety of places, including the legal writing program. But the statement of facts is different. My experience has been that students tend not to recognize that arguing in the statement of facts comes at a significant cost to your credibility.

A. It’s a huge cost. The first thing I’m looking for in the statement of facts is no adjectives, or very few of them. I think these should really be short, choppy sentences. And you know, if I’m writing an opinion, it’s going to have a record cite after every single assertion of fact.

So, what am I looking for? You’re going to have two or three chances to tell the story, so at the beginning of the brief there should be a statement that just tells me: What galaxy are we in? How does this case come to us? I read a set of briefs this morning and I was on page 34 before I knew why we had jurisdiction and what issues were being appealed. You’d be surprised. And I think this is one of the most common mistakes lawyers make. They’re working really hard, and they know their case inside out, but they have forgotten what they did not put on the page. So right up front, I need somebody to tell me why the court has jurisdiction, and what this case is about, at least at the 30,000-foot level. If I don’t have that, I find it very distracting from everything else I’m reading. I suggest writers should get those two things checked off the list right away.

It’s also a mistake to put too much in the first statement of facts, and I tell my clerks to think about that too. What is the general story? What’s this dispute about? And then, later on, after I understand the legal issues and the law pertaining to each, that’s where you can drop down and tell a lot more about the detailed facts, because they’ll be meaningful, and the reader will see how they fit together.

Q. Do you expect the statement of facts to tell a story in the same way that, for example, in trial we tell a story in the opening statement? Do you expect it to be engaging in that way?

A. I hope it’s engaging in that way. You know, it’s the drama. I think it typically is engaging in that way, in a good brief.

CITATION

Q. One issue that often comes up in brief writing is, how do you use the different types of cases or authorities that you might want to cite? How heavily, for example, should I rely on persuasive authority as opposed to controlling authority? How do you see that effectively addressed in briefs?

A. It depends on what court you’re talking to and what other authority you’ve got. The Ninth Circuit has a very important voice, and I think it has a wonderful tradition of using it. We are engaged in conversations with other circuits all the time about what the law is and, where the waters are uncharted, what the law ought to be. But like any good conversation, I want to be listening to what those other circuits are doing and thinking. In that way, authority from other circuits is helpful.

Q. Are there some circuits that are more persuasive to cite to because they are circuits that the Ninth Circuit holds in higher regard in some way, and other circuits may not fit that description?

A. That probably is a question that you get different answers to depending on who you asked on my court. And in my case you won’t get an answer to that question.

Q. I didn’t think I would. So I won’t ask the next question, which was, “Which are the circuits worth citing?”

A. At the time you’re drafting a brief for my court, you don’t know who your panel is going to be. So predicting which courts might be more persuasive could be very fraught. All kidding aside, I definitely want to know what other people are thinking when they’ve confronted these new issues. Absolutely. It’s very, very helpful, Whether I agree or disagree with them, it’s helpful to know what they’re thinking. It’s why my job is so humbling. Even on a three-judge panel on a routine case I try to be absolutely as prepared as I can be going into argument. But I have certainly had the experience of thinking I’ve got something all figured out, and getting to conference, and discovering that a colleague has just read it differently—and has really good reasons for reading it differently. That’s one of the things that makes my job so exciting.

Q. What can an attorney do to make an application for discretionary review stand out? We all understand that discretionary review is sparingly granted. So, what is it that you need to see, that is going to get your attention?

A. In some ways, it is similar to what we need to see or hear for en banc review. We have to be persuaded that we’re going to either hear it now or hear it later, and that there’s going to be a big, much bigger problem if we wait. For en banc review, what we’re really looking for is whether or not there’s an inter-circuit split, or an intra-circuit split. Or is it a question of exceptional importance? The thing that’s most likely to get my attention is an intra-circuit split. I definitely want to know if we have been internally inconsistent.

So of course I’m going to look at that awfully hard when considering discretionary review. If I can see that there are other cases where we have granted interlocutory review under comparable situations, then I’m going to be very concerned about consistency.

STYLE

Q. Another issue that attorneys confront when they’re drafting appellate briefs is how to take the appropriate tone when referring to the lower court—when you have to argue that the lower court got it wrong, or maybe even did something that you think was boneheaded. Are there better and worse ways of doing it? Is it better to depersonalize the process and just refer to the court and not use the judge’s name?

A. Well, there are some ways that might go down worse. For example, I do not refer to the “lower court.” I never liked that when I served on a state supreme court, and I didn’t like it when I was a trial court judge. I don’t think it’s respectful. To answer your question, I certainly would not recommend referring to a trial court judge by name in the circumstance that you are describing. My advice is that lawyers just report the district court did this, or the district court did that. A paragraph that explains how the court reached its ruling can be very helpful. If a paragraph starts by explaining that the district court may be forgiven for making this particular mistake because this or that happened at trial, or explains that a mistake may have been made in light of the arguments that were presented, that type of background explanation is respectful and surprisingly often it’s quite helpful.

Q. Does it catch your eye when district court judges adopt magistrate judge’s reports and findings in full without any adjustment? Does it send a signal that they’re just rubber stamping without thinking? Or is that not a fair thing to infer?

A. I don’t think it’s a fair thing to infer, and I certainly do not think that judges rubber stamp without thinking. Sometimes the signal the court is sending is that it has a whole lot of confidence in that magistrate judge’s work. I don’t think anybody would have that reaction if a state supreme court said that the “superior court judge did a great job, and we’re going to adopt that opinion.” That would be a highlight of some trial court judge’s career. It doesn’t happen very often, but I wouldn’t take that as a rubber stamp at all.

Q. With the time pressures that lawyers face, it can be tough to take the extra time on a brief to work on writing style, especially when you feel like your substance is already there. You have the arguments, you have the cases. How important are pure stylistic considerations in making a brief persuasive?

A. I think it’s huge. It’s the difference between a good brief and one that is masterful. If someone puts in the extra time to reduce the redundancy, to really tighten the sentences, to make sure that each sentence and each paragraph is working effectively and doing its job—it definitely shows.

Q. Is there a place for humor in appellate briefs?

A. I’m sad to say, that is really rare. There are a few lawyers who can get away with it. But the problem is that you don’t know who your audience is, at least not on my court. So that’s why it’s so very dangerous to try to use humor.

Q. The composition of your court has changed a good bit over the past decade. Does the change imply anything that lawyers should be thinking about when they draft an appellate brief? Have the court’s preferences or perspectives and practices in any respect changed in ways that affect how we should be writing our briefs?

A. Well, when I came to the court, there were just a few, maybe half a dozen judges, who were reading briefs on iPads. The norm when I arrived was that boxes of briefs would come up from San Francisco. They get unpacked. Those same boxes of briefs would be shipped all the way back for oral argument. And all of them, maybe 20 boxes, would be shipped back north to prepare the dispositions and opinions. I worked hard to get to the place where I could do almost all of it on my iPad as quickly as possible. And now, of course it is not universal, but it is certainly the case that very few judges actually move those boxes of paper around anymore.

It would be great for lawyers to have an iPad and try reading their briefs there. On an iPad, we see one screen at a time if the lawyers have not built in bookmarks. So it is not immediately apparent what is contained in the brief, and there can be a lot missing from that type of presentation. If there are addenda with the statutes and whatnot, I might not even know that they’re there at the end of the brief unless the author tells me upfront. I find visual cues really helpful. And I think my colleagues do, too. Charts, graphs, photos, and timelines are definitely helpful. They’re visually interesting, for one thing, but they’re also an efficient way to master a lot of information.

That said, on an iPad I can’t necessarily see that there is an addenda. And especially for statutes and regulations, seeing how those authorities are laid out can be very helpful to understanding an argument. For some reason, it seems to be going out of style for people to put the statute in the body of the brief, where the reader can see and understand the author’s interpretation of the statute or regulation. When we worked from paper, it was easy to flip to the addenda. On my iPad, if an addenda is bookmarked so I know it’s there, no problem. But if those authorities are not readily accessible, it is inefficient to go out of the argument and go over to my Westlaw tab and pull up a statute. I appreciate when lawyers remember how much reading we have to do, and how much of it we do at 30,000 feet on an airplane where our sets of statutes are not readily available.

ADVICE

Q. Last question for you. You’ve been doing this work for a good while. Now, if you could wind the clock back and go have a conversation with your younger self before you became a judge … what would you tell that younger version of you? What advice would you give that person based on what you now have come to understand about how this work gets done?

A. I would tell that person to always be mindful of who the audience is. And to remember that there’s some arguments that one can make, and that an advocate will want to make because we all get competitive, but that are not best for the client to have made.

It’s really hard to remember that, as advocates, lawyers really are speaking on behalf of the client. And it’s the client who’s going to have to wear those words and live with them. Sometimes those words will come back and haunt with employees, or with coworkers, or in other litigation or industry groups. You might be surprised how often I read briefs, and I think that might win the day here, it might win the battle. But that’s going to be problematic down the road.

Q. Thank you very much for taking the time to discuss these issues. It’s always interesting talking to you.

A. It was truly my pleasure.

---