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A “Devil’s Advocate” Approach to Brainstorming. Seven Unconventional Ideas That Will Help You Write a Better Brief on Appeal. Start with the facts, read them as a layperson would, identify what is wrong.
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A “Devil’s Advocate” Approach to Brainstorming Seven Unconventional Ideas That Will Help You Write a Better Brief on Appeal
Start with the facts, read them as a layperson would, identify what is wrong. Then find a reason its illegal. Go from specific to general to find a principle that supports your idea. Treat the law as a peg on which to hang your facts. Develop theories as if the law were just. Don’t give up if there is bad law. Remember, judges make the law. 1. The Law is Irrelevant
2. Procrastination is a Virtue • Think before you write. • Try waiting to write. Work out your own style. If you do write early, be prepared to slash and burn. Don’t fall for an issue or a section of writing just because you thought it up or wrote it. Its not a baby and you have to throw out the bath water. • Leave enough time. If it doesn’t “write” you probably don’t understand what you want to say. Or the issue doesn’t work.
You are More Likely to Win Your Appeal in the Shower than the Law Library • Let your subconscious mind help you. Trust that you understand the basics of criminal law. • Don’t force it. There is room for creativity, which is particularly difficult with your head buried in Westlaw. • Don’t ignore something nagging at you from the back of your brain, or the “in the shower” flash. • Let yourself sing (pretend you’re in the shower) and don’t spew citations.
4. No Appeal Has More than One Winning Issue • Most appeals have NO winning issues. • It is unlikely you have numerous winners. Though you are usually told to brief everything, focus on your good issue (assuming you have one). • You probably know which one it is. Remember, though, that judges sometimes surprise us and don’t make assumptions about either the one you believe in the most or the ones you don’t. • Briefing everything saps your time and the court’s energy. • Big signal to noise problem.
5. But, You Must Often Brief Losing Issues • Issue Preservation. Your client may want it preserved, you may think it should be preserved, the law may change. • Cumulative Effect. Your losing issues may help convince the panel to rule in your favor on your winning issue, or help get you over the hurdle of harmlessness. • Heartstrings. Your losing issues may create sympathy for your client.
6. You Can Lose Even When You are Right • The court is looking for ways to rule against you. • Make the court have to rule for you or convince it to want to rule for you. • You are lucky if you can box the court into a corner. • Otherwise, consider: • Appealing to the court’s sense of justice. • Minimizing the impact of a ruling in your favor. • Convincing the court to throw you a bone. • Making conservative tropes your friend.
7. Anders is not a Dirty Word • Anders briefs are sometimes appropriate. • Don’t file one if you have issues. Do file one if the client has issues you can’t in good faith bring. • The client will have an opportunity to write and explain to the court why it should accept those issues, and the client may feel better “heard” than if you filed a marginal or frivolous brief raising issues the client could care less about. • The court will conduct an independent review, which may help your client feel served by the process.
