[APPLAUSE] CATHERINE STETSON: Thanks. Thanks so much for coming
to talk with us today. Can you all hear me OK? Good. A couple caveats and
provisos and one correction at the beginning, the
correction is that only my mother calls me Catherine. So I go by Cate. The caveat and proviso is that
this little doodad apparently runs that little thingbob. So I'm going to try to use this
PowerPoint presentation when Chris and I speak. But we've-- we're luddites
when it comes to this. So if things go
south, we're just going to end up talking to you. And I hope that's OK. You've heard a little bit
about kind of Chris's and my, to the extent we have
credentials to talk about this. But we both clerked for a
federal district judge and then for a Court of Appeals judge. And we both came
to Hogan & Hartson at a very lucky time
for us, because it was when John Roberts was the
head of the appellate practice section at Hogan & Hartson. So along with everything
that we learned in law school and in clerking for a trial
judge and for an appeals judge, we had the opportunity
to learn how to write briefs from someone
who was very, very good at it. So what we're going to attempt
to do today in the time that we have is to
give you some insights, hopefully not too random with
a little bit of order to them, into how we go about
writing briefs. One of the other
caveats to this is that it's really hard we
discovered as we were sitting down to talk about this
program to try to figure out how to teach writing
a good brief, much less how to
teach it in an hour. So we're going to
do the best we can. We're going to leave
a little bit of room for questions at the end. And I understand there's time
for a reception at the end, too. And I'd really
encourage all of you to talk with us if
you've got questions that you don't feel like
posing to the whole group about brief writing. So with that, I'm going
to grab this thingbob. Oh, magic. CHRIS HANDMAN: Fantastic. CATHERINE STETSON: All right. So I'm going to begin,
you all are all either second years or third years. Do we have any first years here? We have first years
in the audience. OK. Let's just a quick review about
the difference between a brief and a memorandum. Because a lot of you
all, particularly-- even second years who haven't yet
maybe worked at a law firm, the most that you've done,
except for the one foray into brief writing, has been
mostly legal memo writing. Legal memos and legal
briefs are two very, very different animals. Legal memos are supposed
to be objective. They are supposed to be
thorough and assessing. And they-- the goal
is to recommend a strategy to a
client or to a partner or to a fellow associate
that you're working with. A brief is different in
several critical respects. It is not objective. Your goal is not to
be a neutral party. Your goal is to be an advocate. Along with that,
you are still though in the position of recommending
an outcome to someone. You are in the position of
recommending a likely outcome to the court. So you can never lose
sight of the fact that, along with your
obligation to the client to be an advocate
for that client, you have an obligation
to the court. And that's one of
the things that we're going to keep touching on
during the course of this time is the obligation to
the Court that you have to be basically a
fair dealer, a candid lawyer, and an officer
of the court when you relate things like facts and
law and argument to the court. So your end goal is to do kind
of the same thing in a brief but with a little bit of a
more evocative twist, which is to recommend an outcome
that the court can adopt and to lead the court in that
direction with your briefing. CHRIS HANDMAN: Well,
good afternoon. I'm going to talk to
you now in segue-- and that was a beautiful segue,
Cate, by the way on that-- to the types of briefs that you
might encounter as you either engage in moot
court or I believe there's a Supreme Court
practice here as well. And you might see any
number of these sorts. And there's really
three sorts of briefs when we talk about
appellate advocacy that you might find
yourself writing. The one that you almost all
encounter in a moot court competition is what we
call a merits briefs. That means at the
federal appeals courts, you have the direct appeal
from the district court. And you are simply arguing
whether this should be affirmed or it should be reversed,
vacated, or somehow sustained. And of course, that falls into
the appellant's opening brief or petitioner's brief, if you
have a petition for review, the appellee's brief,
and then the reply brief if you're the appellant. The goal of a merits brief is
simply to persuade the court that on the merits,
you're right. And that whatever
outcome you're seeking, reversal or
affirmance, is the one that the court should follow. It's a pretty
straightforward goal. How you get there, of
course, is kind of what we're here to talk about today. But it's important,
as you set-- as you begin to do any briefing, to
know what your objectives are. And we begin with the merits,
which everyone I think is probably more familiar
with, because that is a big distinction
from the next category that you see on this slide,
the briefs that seek or oppose discretionary review. By that, we mean,
of course, petitions for writs of certiorari,
petitions for rehearing or rehearing en banc that are
directed to the federal appeals courts. Those, of course,
are discretionary. The courts can take
them or leave them at their will for any
reason or no reason at all. And so what you're trying to
do there is do more than simply demonstrate that you're right. Because being
right isn't enough. Otherwise, the Supreme
Court's docket, instead of having 70 cases,
would have thousands of cases. They have to choose which
ones they're going to pick. And the emphasis, therefore,
becomes a lot different. Your principal goal no longer
is to show that you're right. Your principal goal is
to appeal to the criteria that the Court uses. And this is-- that's a
whole separate section. But in the Supreme
Court, you're trying to emphasize that there's
a split of authority among the Courts of Appeals. This is a question of broad
national significance. This is something that cries
out for the Supreme Court's jurisdiction. And that's the principal focus. You can weave into that this
notion of, oh, by the way, we're right. But that's what you're
really trying to do. And so, as with any
writing exercise, it's very important to
be conscious of what your objectives are. One of the problems you see
with many cert petitions is that they just
reflexively repeat the same points they raised
in their merits briefs, which is a very ineffective
way to get cert granted. The final brief that we talk
about is the amicus brief. And that can enter into both
the discretionary petition stage or the merits stage. And there the key, as an amicus,
is to not-- your first goal is, one, don't undermine
the party, of course, that you're trying to support. Two, try to add value. It's a meaningless
exercise to simply echo the points that the party you're
supporting has already raised. What you'd ideally like to do
is to bring a unique perspective to the Court, offer some
unique, whether it's a factual expertise
or some novel legal reconceptualization, those
are the sorts of amicus briefs that really add value. And if you are retained
to do an amicus brief, whether through a clinic
or whether in practice, you should always sit down and
not only ask, how do we win, but what unique
angle can we bring? And those are really the
most effective briefs. So again, the key at
any stage is always to ask yourself, what
are your objectives, and to set out a little
bit of a roadmap on how you want to get there. CATHERINE STETSON: OK. Parts of a brief. And I don't need to
either teach or reteach this aspect of legal
research and writing to you, because you
remember this part. Or you'll get to it
in a couple months. There are basic elements of any
brief, very, very predictable, whether you're in a
state court of appeals or a federal court of appeals,
the question presented or the issue presented,
the statement of the case, which is
a recitation of how the case arrived at that point. Was it coming up from an agency? Was it after a bench trial? Was it decided on a motion to
dismiss or on summary judgment? Those little procedural
touch points along the way, the statement of
facts, the summary of the argument
and the argument, we put these up there
not to remind you of the basic skeletal framework
of a brief but for two reasons. The first is, this is an
example where you must remember to consult the local rules
of the court in which you're practicing. And we'll get back to this
later in the discussion as well. Different courts of appeals
impose different requirements on the advocates appearing
in front of them, in addition to these. They usually won't
supplement anything that's up on the screen right now. They usually won't supplant
anything that's on the screen right now, but
they'll supplement it. For example, there are
courts that require you at the beginning of
your brief to make a statement about the court's
possession of jurisdiction over the appeal. There are courts that
require you to state, in a standalone section,
why your client has standing to pursue an appeal. There are courts
that require you to, at the very beginning
of your brief, to identify the three cases
most pertinent to every issue you plan to argue on appeal. So it's absolutely critical, and
we'll remind you again later, to always consult the local
rules of whatever court you're practicing in, don't
just stand on this format as the gospel for any
particular appeal. The second reason I put this
up here is to remind you of another theme of
this presentation, which is every single one of
these elements, the question presented, all the way
through to the argument, is an opportunity for you to
argue your case to the court. Only the argument is
called the argument. But every single one
of these has a purpose. And the purpose is, from the
very beginning of the issue presented, to bring the court
over to your way of thinking. And that happens the way you
frame your question presented, and it happens in
the facts that you choose to emphasize
and de-emphasize in your facts section,
and it happens throughout. So that's one of the other
reasons I identify that. Moving over to the
question presented, the question presented
is the first chance that you have at the
beginning of your brief to frame your appeal or to
frame your defense of the lower court's ruling. And the reason I'm
splitting it up that way is, of course,
depending on whether you're for or against what
happened in the court below, you're going to
write potentially two very different types
of questions presented. And here are two examples,
one from an appellant and one from an appellee. And Chris and I went
back through our briefs and pulled some
examples for you. So this is an appellant's
question in a case that Chris handled in the
Fifth Circuit Court of Appeals about 18 months ago,
an insurance case. The giveaway, the
reason you can tell that this is an
appellant's question, is the first five words, whether
the District Court erred. That is the sign of an
appellant's question. Because the seed that
you're planting in the court's mind
is one of error. It seems like a
tiny little thing. But with brief writing, one
of the things to remember is that tiny little things
add up to something. And a question
presented like this is an appellant's question
presented, whether the District Court erred in ruling. And then you see the
rest of the question presented that Chris
crafted is designed to lead the court by the
nose to the conclusion that our client liked. And ruling that an insurance
policy that excludes coverage for any loss caused
by flood nonetheless affords coverage
for flood losses simply because the flood
wasn't triggered entirely by natural causes. The suggestion is that by
introducing natural causes, the court is starting
to rewrite the policy. So you're already
beginning your argument. You can't quite tell, but that's
what the question presented is doing. Appellee's question,
this is a question that was crafted by my opponent
in an Energy Regulatory Commission appeal. So it was coming up as part of
an administrative procedure act appeal, straight up from
the agency, from FERC. And my question
presented was, I think it had a couple of
different parts. It was more narrative. And I'll turn to that next. But it did something similar to
what Chris' question presented did. It talked about how the Federal
Energy Regulatory Commission had erred and acted
capriciously in the way that it handled this
particular issue. Look at what FERC did, whether
the Federal Energy Regulatory Commission reasonably
directed the petitioner to file additional information
and supported the tariff. It makes it sound like
it was just another day at the office for FERC. And again, planting that word
reasonably in the court's mind. It looks like a small
thing, but it's not. Here's one more approach
to a question presented. And this is something that
Chris and I use particularly in complex cases where we
think a little bit of a fuller recitation of the
facts will help us. This is from a Supreme
Court brief, a merits brief, that we filed in the spring. This is more of a narrative. And it begins by
setting up the question. So you don't just jump in
with the [? whether. ?] You have all of the
narrative background, which I won't read for you. Because I assume
you all can see it. And then the kicker
is at the end. The question presented is
whether the court correctly held, based on the
record facts, that Taylor was in privity with Herrick. Two things there,
the first again is the reference
to correctly held. You all can wager
that we were filing a brief in support of the DC
Circuit when you see that. And the second is our emphasis
on based on the record facts. Because despite the fact that
this was at this juncture a merits brief in
the Supreme Court, one of our critical
arguments was that this was a highly,
highly fact specific case, susceptible to a highly
fact specific inquiry. And so we threw that
into the question presented for good measure. So that's a different
way of writing a QP. Sometimes it proves too
cumbersome or a little bit too laborious, particularly
if you're the appellee. Sometimes you like the nice
tight question presented that I showed you from FERC. But this is another
way to do it. All right. Now we're going to move on. Chris is going to talk a
bit about the statement of the case. CHRIS HANDMAN: The statement
of the case, as Cate mentioned earlier, is really
an opportunity to just offer a very
brief recitation of the procedural
posture and some of the more, you
might even call them, generic aspects of the case. And the tragedy is that
people often treat it just as that, as a generic
throwaway, some necessary part that Federal Rule of
Appellate Procedure 28 tells you to include
in the brief. And people just put
in the bare minimum. But again, you have to
think about every aspect of your brief as an
opportunity to persuade. Even if it's a
small section, it's another opportunity
to be subtle, to offer your own
interpretation of the case. And this is an area where you
simply identify the parties. You identify the claims
that were raised. You point out the procedure. Was there a discovery? Was there a trial? Was this resolved
on summary judgment? And then ultimately, the
disposition below, you can imagine this section could
take as few as two sentences to write, or you could
spend a page and a half. And the problem is
that if you're a-- depending on which
side you're supporting, you might very well want
to spend a little bit more time fleshing out what the
nature of that case is. For example, imagine you
just won a-- your side won a jury trial after two
weeks of intense trial. Well, chances are
you're going to try your best as the
appellate to position this case as a re-examination
of factual findings made by a jury. And that barring some
apocalyptic error on the jury's part,
the Seventh Amendment precludes this
Federal Appeals Court from second guessing
the work of 12 jurors. So your procedural
statement of case might very well emphasize
the length of the trial. You know, you might
want to emphasize this was a long 12-day trial
or 28-day trial during which the court received into
evidence 1,362 exhibits and the trial testimony
lasted X number of pages. Your opponent might very
well want to gloss right over those facts. And so you're statement-- the
appellant statement of interest might very well, and
strategically, appropriately, downplay some of those points. But here, again,
is an opportunity to take an aspect
of the brief that's otherwise formulaic, that most
people just simply consider a throwaway, and subtly
craft part of the argument. And this is a
process of accretion. It begins with the question
presented and flows through the statement. And then it flows on
into the next statement, which is the next section,
which is the statement of facts. And this is the fuller
exposition of the case. And again, the chief
error that people make when they put together a
statement of facts in a brief is that they simply assume
it's put together the facts. They often will write
the arguments section and decide to come back
later and fill in the facts, viewing it as just the facts,
ma'am, sort of obligation. But that's, again, just an
unfortunate mistake and really a real missed opportunity. Because the facts, this is
your time to tell a story. And that's really how
you should view this. It's an opportunity to spin a
narrative, not to spin a yarn or make stuff up, but take
the facts as they exist and couch them in a
way that is not only subtly biased in your
side but is interesting. You want to tell a story
that doesn't lull the reader to sleep. And let's just
postulate right here. There is no rule
in legal writing that legal writing
has to be boring. Legal writing, to be
effective, doesn't have to be as interesting as paced. It should actually be
interesting at its best. And the facts are your
opportunity to do that. That narrative should
hopefully hook the judges. No one is going to option
the screen rights afterwards. But if it can at least
get them through and not only lead you to be persuaded
but keep their interest and understand the thread. And the best fact
patterns are the ones where, by the end the
facts, you don't even need to read the argument to
know what the problems were and why those-- why the rulings were incorrect. And so, again, as
Cate emphasized, and as we've been
emphasizing throughout, you really need to
focus on, again, your objectives and
how you're going to posture this, and take the
time to really craft the facts. When I do this, for me, it's one
of the most important aspects of my brief. I don't consider the
facts any less important than the arguments section. And in many ways, I take a
lot of pride in crafting that. Because if I can capture
the judges out of the box, you've already gotten halfway
through the argument that way. Would you go onto
the next slide? CATHERINE STETSON: I did. CHRIS HANDMAN: OK. Excellent. Two points to keep in mind
though about a fact section, as I mentioned, you want to
structure the facts section so that the court knows which
side you're coming out on. And you want to tell a narrative
that, of course, doesn't come across as a dry, perfectly
bland, and neutral recitation. You want to tell that story. But you also have to
be honest, of course. And you have to be considered
a fair dealer here. You don't want to hide facts
that are harmful to your case. You certainly don't want
to exaggerate the facts in the case, nor
do you, of course, do you want to make
any of those facts up. The don't hide bad facts is an
important injunction to heed. Because you know your opponent
is going to raise them. So it's your obligation now. You might as well deal
with them in a way that you have the opportunity
to structure them, in a way you can downplay them,
in a way that you can dismiss them, in a way that
you can tee them up for once you get to
the argument section, giving a better
understanding about why these facts, as
bad as they may be, are legally irrelevant
in the long run. So don't hide from them. Just as you can't hide from bad
case law, as we'll talk about, you don't want to do that. The most important thing,
of course, in any advocacy, whether at the appellate
or trial stage, is to maintain your integrity
and your reputation. And once those things
are lost in a brief, it's going to be very
difficult to dig yourself out of that hole. Finally, the objective, help
the court write its opinion. Ideally, you would love to
be able to write a facts section that the District
Court or the Court of Appeals, depending on which level
you're advocating at, could simply, with a
few cut and paste jobs, could basically paste
it into their opinion. And as you write
that facts you, need to think about how you,
if you were the judge, would write this. And if you can write it in a way
that helps lead the court along and that gets them to the point
where, this is the story that is going to dovetail as
seamlessly and as nicely as possible with the legal section
you're about to segue into, that's the ideal [INAUDIBLE]. And you can't view them
as sort of separates. They're of a piece. You have to evaluate
your facts section with the legal Section, which
I believe will lead into-- CATHERINE STETSON:
We will turn to now. CHRIS HANDMAN:
--summary of argument. See that was a
seamless transition. CATHERINE STETSON:
Summary of the argument-- that was a good segue. Yeah, props for that. Summary of the argument,
there's not too much more to say other than
what's up on here. Purpose, roadmap, length,
short, tone, firm but not fiery, two things I'll add. The first is, again,
in service of what Chris has called the accretion
of these portions of the brief, beginning with the
question presented. The summary of the argument
is that transitional moment between your facts
which, again, have to be very carefully crafted
so they look facially neutral but tell your story, not
a story but your story. This is the beginning of that
change into advocate mode. It is one of the most difficult,
if not the most difficult, elements of the brief to write. And for that reason,
I usually chicken out and save it for last. Both because, at
that point, the brief has gelled sufficiently
so that I understand where the story's going to end
up and because, by that point, I know how to say something
a little bit more cleanly and concisely. It's really, really
hard to write a short summary of the
argument, if you do it well. It's very easy to do it poorly. But writing the
summary of the argument is something that
philosophies might differ about saving it for last. I can tell you that it used
to drive our former boss nuts when I would
save the summary of the argument for last. But I did it anyway. Do you save it for last? CHRIS HANDMAN: I do. CATHERINE STETSON:
Do you really? CHRIS HANDMAN: And I actually-- I often find I will-- I save it for last. And then I will-- Roman numeral one of
my arguments section, I often will have a-- my first draft, a long
introduction section that kind of tees up
the arguments going on. That section often-- CATHERINE STETSON: And then
you move that into the summary. CHRIS HANDMAN: --finds its way
into the summary of argument, because it tends to offer
those overarching themes. But I always save it for life. CATHERINE STETSON: All right. So the two out of
two dentists agree to save the summary of
the argument for last. The argument, let me set
up a couple main points. And then Chris is going to
walk you through some argument headings in a particular case. But here are four
main points, a couple of which you've already heard
in different guises before. Order your arguments carefully. Land your punches. Fight fair. Don't yell. Order your arguments carefully. What I mean by
that is depending, again, on what side
of the case you're on, whether you're the
appellant or the appellee, think very critically
about a couple different moving
pieces of the appeal. Do you have threshold
jurisdictional issues that you either need to contend
with or to raise right away? Do you have standards
of review that are more or less
favorable to you, depending on whether you're
the appellant or the appellee? If you're the appellant,
you are loving any legal questions
that give you a de novo standard of review. If you are the appellant
after a bench trial, you are not loving
factual determinations that are subject only to a
clear error standard of review. If you're the
appellee, you flip. If you're the appellee,
your entire emphasis, as Chris was saying earlier,
should be on how facty the whole case was
in the trial court, and how much time
the Court took when it labored over making all of
its factual determinations, et cetera, et cetera. So, again, depending on what
color brief you're filing, red or blue, you're going to take
two very different approaches to how you structure
your arguments. You also have to
factor in at this stage the strength of your arguments. If there are arguments that
you think are very powerful, put them first. Now there's one
exception to that. And the exception is a
jurisdictional argument. Even if you think the
jurisdictional argument, let's say you're the
appellee, and you want to raise a question about
your adversary's standing. It may not be a winner. But if you leave it until
the very end of the brief, the signal that that sends to
the court is quite telling. And the signal is that you
don't believe this argument. Because it's a threshold
jurisdictional issue that would deprive the court of
the ability to hear the appeal. And yet, you as the appellee
have saved it for last. So in that circumstance,
where you're talking about a
jurisdictional determination, front load it, even if you
think in the order of strengths of your arguments it may not
be your strongest argument. Land your punches. One of the things
that John Roberts was asked after he became a
judge is whether now that he had seen lots and lots
and lots of briefs from different parties
whether he would write his own briefs
differently if he returned to private practice. And the one response that he--
he said yes for one reason. I would have chosen fewer
arguments to make on appeal. So when I say land your
punches, if you have on appeal five different arguments that
you think are pretty decent but only three of them are
really good, make the three and leave the two
off of the briefs. Because the effect of leaving-- of including those
two weaker arguments is to drag your
entire brief down. The judges start questioning
your credibility. They start questioning
your candor with the court in making
choices to include those briefs. And that sounds a
little bit jarring, particularly to a client who
wants to throw every argument he can into a brief. But it increases your
chances of winning on those remaining
few arguments if you go with what you know your
strongest points are and don't just kitchen sink the thing. Fight fair and don't yell
should be self-explanatory. Sadly, they're not. You would be shocked, or maybe
not, at the number of briefs that we see from folks
in the Court of Appeals, which has the reputation
of being such a-- such a courteous
place to practice in, where the lawyers take
personal shots at each other. Some people I think go
into the legal profession because they like to argue. And those are exactly the
sorts of people who shouldn't go into the legal profession. So fight fair and don't yell. Going into more specifics,
I'll turn it over to Chris. CHRIS HANDMAN: Thanks. And before I do, on the
don't yell point, please, whatever you do, do never-- do
not ever use the exclamation point in your brief. It's just the worst
signal to send. There's nothing wrong with
having force behind it. But once you start
down that path, you might as well start
using emoticons in your brief as well. We should try that
some time actually. CATHERINE STETSON: We should. That'd be good, a
little happy face. CHRIS HANDMAN: Let's
talk about the order of argument, because it can
really make a difference. And here's-- the next two
slides demonstrate the different approaches and the subtle
emphases that are going to change, depending on
whether you're the appellant or appellee in a given case. This, just by way of
background, these arguments come from a Tenth Circuit
case I was involved in. It was a Foreign
Sovereign Immunities Act case brought by a
corporation headquartered in the British Virgin Islands
doing business in China. And it sued, for reasons that I
won't bother to bore you with, two Chinese governments,
the Sichuan province and a local government
there, under the FSIA. Under the FSIA,
these sovereigns are entitled to sovereign immunity,
unless there is a exception. And one of the
exceptions, the only one they argued, was, when
the government engages in commercial activity that has
a direct effect in the United States, so if France buys
tanks from a contractor here and breaches, then
they can sue France. Because it's commercial. And it's going to have a direct
effect on the United States. Well, this case also had
a procedural wrinkle. Because these
Chinese governments didn't quite understand
American procedure and removed their
case three weeks late and had to ask the District
Court for special permission to remove, which the
District Court granted. The District Court then
ruled in our favor. And the other side
took it up on appeal. So you can see what
their argument is. The first argument deals
with the threshold question, as Cate was talking about. The threshold question is
whether the District Court abused its discretion
in allowing the Chinese governments to
remove this case out of time. Well, let's just pause there
and emphasize a few points. They began with an
argument that has a rather unfavorable standard
of review, abuse of discretion. If you have your choice
between appealing as appellant a decision which is measured by
abuse of discretion or de novo, you're going to pick de novo. So here they led off with
abuse of discretion argument. That normally would
be a miscalculation. Except here, you
have to factor in that this is sort of
a threshold question. Should this have even
been in federal court in the first place? We took it from state
court to federal court. And we did it out
of time, admittedly. And they were saying
that was wrong. So this is one of
those situations, like the jurisdictional question
that Cate was emphasizing, where it would make
no sense to put this at the back end of their
brief, after they've just spent 50 pages telling the court
why they're right on the merits to suddenly get to page 55
and tell the court, oh, you know all that stuff we
said about how we're right on the merits. You don't have to
even bother with it. Because this didn't even
belong here in the first place. So it just-- it's kind of
an incongruous organization if you put it at the end,
even if you don't think it has much merit, which
it didn't in this case. But they then go on to the
principle merits argument. The court committed
legal error in concluding that subject matter
jurisdiction was lacking. Heading A, the actions
taken by the governments were taken in connection
with a commercial venture. As I mentioned,
there was two prongs. They had to show commercial
activity and direct effect. And the next thing, item
B, the government's actions had a direct effect in the US. And they say, because it forced
these American corporations to lose profits,
that's their argument. Well, now let's
turn to our outline. We, of course, join
issue with them immediately on this
threshold question. As appellee, of
course, if they're going to say this didn't
belong in the first place, it's our obligation
to say why it did. And notice what we
say, the District Court did not abuse its
ample discretion by enlarging the removal
period by three weeks. The point here is
to emphasize what? Discretion. This is something that-- it's a signal immediately
to the Court of Appeals. You have no business
interfering with this decision, unless the District Court made
some really egregious error. And then the second
thing, he removed-- he enlarged it by three weeks. We're not talking
about enlarging this by several years, as actually
some of the cases we were dealing with and contemplated. This was a mere three week
discretionary review, nothing to see here, move
right along is really the subtext of what this
heading is trying to convey. And the court did
move right along. And it went on then to
argument heading two. The District Court
correctly determined that the governments are
entitled to sovereign immunity. Then we break it down. The court's decision, the
Tenth Circuit's decision categorically holds that
lost profits do not satisfy the direct effects prong. We're saying, we're taking
head on their argument on direct effects. They said it was lost profits. And we had a great case that
said, no, lost profits simply aren't appropriate. Let me just refer back. Let me take this, if I
can master this slide. If you go back to their outline,
you'll see they began it with A and B. A was
commercial activity. B was direct effects. Don't, as appellee, feel like
you have to follow in lockstep whatever the appellant has done. If the appellant has done
it in an order that's most favorable to
them, there's no reason why you have to
allow them to dictate how you structure your brief. What we did was, because
the strongest argument was direct effects,
and you need both, these are conjunctive
tests not any one will do, we began with the
direct effects. And that's what we indeed
won on in the Tenth Circuit. So that's an important
lesson as appellee. Don't feel like you're boxed
in by how the appellant has structured his brief. And then the third argument
point is just to show, again, how you're not boxed in. You have some latitude. This one emphasizes that
there were alternative grounds the District Court opted
not to reach them below, because the court felt that
we were right for this FSIA reason. But there were any
number of reasons. We raised active state and some
international comity issues. The court didn't reach them. But we offered them there
as an alternative way for the court to reach the
judgment that our client was seeking. So that's an example of how
an appellant and appellee structure and how an appellee
can position the case so as not to be boxed in. And make sure you're
always asserting your most powerful arguments. CATHERINE STETSON: All right. How to write a header. And I-- we isolated this
for special attention. Because, among other reasons,
I come down a lot in the spring to judge oral
arguments that you all do at the end of your 1L
legal writing programs. And this is an issue for y'all. I have lost count of
the number of briefs that I've read where
the header basically is sometimes even a two or
three sentence argument. It is harder to write
a short header but so, so much more effective if you
look at these three examples. They can't all be as
neat and clean as this. You saw the headers
in Chris' brief were a little bit
longer than this. But this is the ideal. The ideal is to find
some pithy recitation that you can do that doesn't
take up, for example, and this is not one of
your briefs, I promise, the whole screen. This is how not
to write a header. This was in an
Eighth Circuit appeal filed by a plaintiff in
something called a Medicare secondary payer case. And she made a typo,
which I corrected for her. We'll get to that. So the point of
the header is just to provide a little
bit of a foothold. It's not to make the
argument that you're about to make in the
argument section. And I want you to
bear that in mind as you write your next briefs. We're going to get into now
some do's and don'ts to wrap up. And we've got several examples
of each and some examples taken from briefs and from opinions. And I want to start with the
most complicated substantive do. And this is important, not just
at the brief writing phase, but also in any moot
court oral argument. And are you all doing
[? Lyle? ?] Is that why most of you are here or
other external moot courts? One of the most difficult
things that you have to do, and it's painful and
it's painstaking, is to identify the weaknesses
in your own argument. It does you no favors,
it does your client no favors to drink the
Kool-Aid without thinking about what the weaknesses
are in your argument. And every single case has them. There are always at least
two sides to every story. So as you are writing, one
of the most critical things that you can do is,
no matter how long you've lived with
this case, no matter how fervently you believe
in this particular cause, step back, adopt a neutral
more assessing view. And this is where the legal
memo training comes in handy and ask yourself the
questions that you think would be posed to you by a
judge or by the other side as you are writing the brief. And it's for the
reason-- one of the, among other things, the reason
Chris identified earlier, which is, in the facts section
or in the argument section, why not take the opportunity
that you have in drafting your brief, your opening
blue brief or your red brief, to identify and diffuse bad
facts or bad legal precedents for you? Why wait for somebody
else to do it for you, which then
puts you in a very reactive, defensive mode? Do it yourself. And in order to
do that yourself, you have to ask yourself
those hard questions and write the brief to them. And it can be
very, very painful. The thing about
doing it, though, is that it buys you
instant credibility with the Court of
Appeals if you show the depth of your
thinking on these issues. CHRIS HANDMAN: A second
do, and this is one really we've already said
a few times, is to put your strongest
foot forward, with certain exceptions. And Cate mentioned
jurisdictional exceptions. The Foreign Sovereign
Immunities Act exception I mentioned with
the removal question is also a notable exception. But by and large, you want to
lead with your best arguments. And that's-- and that also ties
into what I also emphasized, whether as appellee
or appellant, do not feel like you are
bound to follow whatever order the other side has
chosen for you. So it doesn't require much
more elaboration than that. But that is a principal concern. Because when you look at
briefs, you will wonder, why did they lead
with this argument? Why did they not lead with
the second or third argument? And part of it, I
think, has to do with what Cate just
mentioned, which is that there isn't a critical evaluation. There's this reflexive adoption
either of the arguments that were raised in the trial
court and the order that they were presented
in the trial court. Or there's just some
uncritical examination of their own case,
where they might think this was a good argument but had
they thought a little bit more about it would have recognized
the glaring hole in their case that might have counseled
against raising it at all, or, if they were to raise
it, second or third. And that-- so that's really
the key lesson there. CATHERINE STETSON:
Write a shorter brief. One of the stories that the
judge I used to clerked for tells is never getting
to the end of the brief and just really wishing
that it were a lot longer. Because he just would
love to read more. It is, as I've said
again and again, it's much harder to
write a shorter brief. It's harder to write
a short summary. It's hard to write
a short header. It requires you, again, to
be critical and assessing about the strengths
of your arguments and how you write them. This is not just a
mechanical exercise. It's a craft. And you have to take a
certain amount of pride and pay a certain
amount of attention to how you craft your brief. The other reason to
write a shorter brief is, if you think
about it, it also sends a substantive message. And the message
is, this case is so easy I don't have to say more. And particularly when you
are the appellant appealing legal issues, it
shows such confidence in your-- in the
rectitude of your position if you can put in a
brief that comes in well under the word limits. And I'll give you an
example drawn from something that one of my colleagues
shockingly did, not Chris, relatively recently. He was filing an appeal, a
brief for an appellant, so opening brief, after a very,
very lengthy and complicated bench trial chock full of facts. His brief made a number of
very valid legal arguments. He sought double the word
limits to file his brief. He didn't think he could get
the job done in 14,000 words. So he went to 28,000. CHRIS HANDMAN: This
brief goes to 28,000. CATHERINE STETSON:
This brief goes to 28. I was-- I was not supportive
of that motion for this reason. If you are the appellant, and
you are raising legal issues, and you are coming off of
a three-week bench trial, it's absolutely the
worst thing that you can do to make the case look
heavy and complicated and laden down with facts and
explanations and caveats. I think that kind of strategy
plays into substance. You need to show
the court that you are so confident in the
rightness of your position, you can get away with writing
this thing in 11,000 words. You're not even
going to go to 11. CHRIS HANDMAN: Next do,
again, we touched on this. Be candid at all times. I think that goes
without saying. But you'd be shocked, again,
at the frequency with which this mandate is ignored. And we have a example
just to provide you with a little amusement. This is, I believe, in
the Federal Circuit. And you can read for yourself. This is an excerpt from the
Federal Circuit's decision. At oral argument,
they had asked counsel about a particular
case, which the judges and their enterprising
law clerks had found out and thought was pretty
much right on point, and asked the council,
what about this case? Doesn't it pretty much
ruin your argument. And he said, yes, it does. But he-- CATHERINE STETSON:
But he didn't cite it. CHRIS HANDMAN: But
he didn't cite it. He knew all about it. He knew its effects on the case. He knew that it would pretty
much undermine the argument. But he decided, there's
no reason to include that. Well, that's simply inexcusable. And it's going to earn you the
rebuke that this lawyer got, when the court said it
noted its significant dismay at this failure. And officers of our court
have an unfailing duty to bring to our attention
the most relevant precedent. The fact is, even with the worst
of precedents with some perhaps rare exceptions, there's
always a way to at least gin up the distinction. And there's always a way to
draw a factual distinction if nothing less. And the reality is, you
have no other choice. If you want to preserve
your credibility not only with that panel but
subsequent panels, if you have any interest in doing
this for a living and making a bit of an
institutional presence of yourself at the
court, you don't want to undermine
it in a single brief by engaging in
that of deception. And that's really
what it came down to. Another-- yeah, another
example, again, this is a failure to
cite certain facts. This is, I believe,
from the DC Circuit. Again, the court goes out of
its way to express its dismay. By the way, if you're
involved in a case, you want to always avoid
having the courts say they have dismay over any of
your positions or actions. That's really should
have been rule number one of this exercise. And here, essentially,
in between the time that this case became ripe
and the time of oral argument, the agency had
changed its policy. And no one bothered to notify
the court of this change. As you can see, counsel for
FERC acknowledged the change only when directly
confronted with the decisions at oral argument. We expect more from
government counsel. But they also expect
more from everybody. Again, this goes to
the whole officers of the court for those of you
studying for the MPRE right now. We are perplexed by the
failure of petitioner's counsel to alert us in either their
brief or at oral argument to the change. Again, anyone worth their
salt should notify the court of things that are relevant. And again, I think it
goes without saying. But these examples show
that it needs to be said. Another do, read
the circuit rules. They are chock full
of all sorts of traps. And if you don't, you're
going to walk into and get your brief bounced and enjoy
the humiliation, if you're the firm, of having
the partner say, I just got a call from
the Seventh Circuit wondering why our
brief has been bounced. CATHERINE STETSON:
Hypothetically. CHRIS HANDMAN: Hypothetically. CATHERINE STETSON:
Hypothetically, that happens. CHRIS HANDMAN: And you
would like to avoid that. And that's not hypothetically. You would concretely
like to avoid that. [LAUGHTER] And it's a simple way
to do it actually. You just have to
really pay attention and don't get lulled
into complacency. And certainly don't assume
that, even if you've become a mini expert
in DC Circuit practice and know you could recite
off the top of your head all of the idiosyncratic
filing requirements they have, that the Ninth Circuit is going
to hew to the same standards. Pretty much every circuit has
its own unique requirements to one degree or another. Be very careful and don't
assume that the rules that were in operation
three years ago when you file your
Federal Circuit brief continue to be in force. These rules change
rather frequently. Always stay up to date. Again, points that are too
obvious to state and yet they need to be stated. Because whether-- because
we will run out of time, or, for whatever reason, they
don't pay attention to that. And that's going to contain
all sorts of those threshold requirements that
Cate referred to. It's going to refer
to brief colors, any number of procedural
and even substantive aspects about what you need to
include in the brief, like a jurisdictional
statement even. CATHERINE STETSON: Don'ts,
don't assume the court knows everything you do. And the reason this
becomes an issue, it becomes an issue most
often in two types of cases. The first type of case is
where the lawyer has lived with the issue so long that she
forgets that other people haven't. And this, again, goes
back to our admonition always to remember yourself
when you're writing this brief and remember to
step back and look at the facts and the arguments
and the structure of the brief in a more neutral way. Ask yourself when you're
putting the brief together, what does the court need to
understand about these issues? So it happens if you live
with the case for too long. It also happens in very
esoteric areas of the law, like insurance. This is an example from
a real live first page of a brief that was
filed in the Seventh Circuit in a reinsurance case. And when I say first page, this
is how they essentially lead off their statement of facts. There are a number of problems
with leading off your statement of facts this way. Not only is this
absolutely impenetrable, It's totally ineffective. It goes to what we were
talking about earlier. You're not gathering any
kind of useful information for the court to use in
ruling for you later. You're just spewing bizarre
acronyms and catch phrases at a court that doesn't
understand them. Here's the kicker. This is, again, another
substantive reason for not doing this. If you can explain
a complicated area to the court,
reinsurance, patent law, something highly
technical like an agency action from an
environmental-- involving an environmental regulation,
the court will love you. The court will trust you. The court will think that
you are a fair dealer. And the court will want
to rule in your favor, to put it candidly. This is how the Seventh
Circuit reacted to this brief. This reaction that
you see on the screen came at the end of
the court's decision. So the court dealt with this
complicated reinsurance issue. This is a decision written by
Judge Posner on the Seventh Circuit. And he did it in his typically
melodic, well-crafted, Posnerian way. And then he dropped the
hammer on all of the advocates at the end of his decision. There's nothing wrong with a
specialized vocabulary for use by specialists. But the admonition here is
that judges aren't specialists. And their law
clerks, these folks who are fresh out of law
school for the most part, they certainly
aren't specialists. And you need to give them the
practical layperson's language to help them
through these areas. And that is a huge
pitfall that people who have been practicing
for 40 years regularly fall into when
they write a brief. CHRIS HANDMAN: And just to
follow up on that before we get to the next
don't, I said earlier that an effective
legal brief doesn't have to be boring to be good. It also doesn't have
to have sentences that are 12 lines
long to be good either and 13 independent clauses
set off with commas. There's this sense
that in legal writing you have to have these overly
complex sentence structures. Not so. Simple, elegant, precise writing
carries the day, particularly when you're dealing
with something as esoteric as reinsurance
law, which I didn't even know existed or what
even knew what it meant before I became a lawyer. Or patent law, I mean these are
concepts that are incredibly difficult to digest. You need to break them down
into more bite-sized morsels. And that means often
writing in a simpler style. It doesn't mean sacrificing
eloquence or elegance or using monosyllabic words. But it means making
sure you're presenting these concepts simply. Sentences that
are short is going to be so much more effective
than that monstrosity of a paragraph that Cate
just showed earlier. CATHERINE STETSON:
And let me just add that one of Chris' favorite
sentences to write in a brief is not so, which is why
he said it a minute ago. CHRIS HANDMAN: Which technically
is a fragment, I realize. But that's why-- CATHERINE STETSON:
We'll give you a pass. CHRIS HANDMAN: Which
is why, again, you should feel free to have
a little bit of creativity in writing. Don't feel you need
to say this is not so. Not so is a perfectly
acceptable rhetorical device. You can tell I've had this
debate with people about this. CATHERINE STETSON: We've gone
rounds about this before. CHRIS HANDMAN: And this speaks
of-- this is a good segue. Don't cast aspersions
on your adversary. [LAUGHTER] Don't do that is the short rule. And here's an example from a
brief where the party said, in short, the district
court's determination that no oral contract
existed between the parties was plain error. Why the district court
reached so far for the company is a mystery to
these plaintiffs. I mean, when you start putting
the tinfoil hat on and worrying about conspiracy
theories in your brief and suggesting that the
district court's in cahoots with a party, you are really
finding no quicker way to have your side lose. It's just-- it's
completely ineffective. It is counterproductive. And even if you really
believed in your heart that there was some-- the jig was up, no
point in raising it. It's not true. You're not going to
be able to convince three appellate judges, who
probably trust and respect the district court-- CATHERINE STETSON: And who may
have been district court judges themselves before ascending
to their current position. CHRIS HANDMAN: Exactly. So, again, I think these are
common sense principles that need to be emphasized
only because they're breached every now and then. Another example, this is from
a case I was involved in. We had cited-- we were trying
to attack the district court's summary judgment
ruling and said, here's some other evidence
that the court didn't consider. And the parties--
the other party said this was inexcusable,
because this was evidence that was entered in at trial. And they relied on
a Tenth Circuit case that suggested the
practice might not be kosher in the Tenth Circuit. Well, we were in
the Second Circuit. And the Second
Circuit had a case directly on point that said
this is entirely appropriate. We were sensitive
to this question. And so-- but they,
nevertheless, decided not to research the Second Circuit. And they, I guess, just
liked a bigger number and went with the Tenth Circuit. And they say, this
is wholly improper and should not only be
summarily rejected by this court but counsel should
be reprimanded for engaging in such conduct. Well, a few things
to keep in mind here, you better be sure you're
right before you start leveling these sorts of allegations. Because it's awfully
embarrassing. And I think we made a
pretty good show of it in the reply brief. Another thing, and this
is just on writing. Any time in the same clause
you have two adverbs, wholly and summarily, it's--
you're pushing a little bit too hard probably. You can probably--
that's usually a sign that you don't really
believe in the argument yourself. CATHERINE STETSON: Chris
is Hogan & Hartson's resident grammar
diva, just for those who haven't figured that out. CHRIS HANDMAN: As
some know actually. And but-- here's
the other point. If you start
protesting like this, you're going to
protest too much. This is a silly procedural
question more or less. That this party is going to such
great lengths to tell us that-- to urge the court to reprimand
opposing counsel, which is a bit of a nuclear
strike in law practice, particularly at the more
collegial appellate level. And to do so, it is
really suggesting there must be something there. Otherwise, they
wouldn't be pushing so hard, unless they're just
jerks by their nature, which is possible. But the courts, the
judges are probably going to give them
the benefit of doubt and wonder why are they
so concerned about this. Or at least I think that's a
natural human question to ask. The final point about
this is that, it does little good
to tell the court to sanction another party. You don't-- with rare exception,
you don't want to ask the court to sanction this party
in your merits brief. Because if it's really
truly bad conduct, the court will
appreciate it itself. And it will determine--
it's not going to say, oh, this looks pretty bad. Oh, maybe we should-- well,
they didn't ask to sanction. If they want to sanction,
they're going to sanction. Sua sponte, they
have that authority. So it does you no good. It only detracts from
your own legitimacy and your own sense of being
a fair dealer at that court. So barring some grievous
ethical error, in which case you should probably deal with
it through a separate motion, keep your briefs pure. And if you really
need to attack counsel for something that's
objectively really wrong, do it through a motion. But the better
practice, of course, is simply lay off the rhetoric. Present your argument
as aggressively as you can within the bounds
we've been teaching you today. CATHERINE STETSON: And
speaking of rhetoric, we've talked a lot about how to
craft a brief that really sings and that tells a story. That doesn't mean,
as we said earlier, that you should yell or
to use rhetoric that's just so over the
top that it becomes a little bit of a
point of mockery. One of the first briefs that
I read when I was a law clerk was a case involving a
preemption issue involving the Federal Insecticide,
Fungicide, and Rodenticide Act. And the brief of
the appellant began, this is a case about injustice. And I thought to
myself, no, this is a case about the Federal
Insecticide, Fungicide, and Rodenticide Act. Calling it a case
about injustice put me at some distance
from the appellant's brief, because I couldn't take them
seriously after that point. And that was the first sentence. So be careful when
you use the rhetoric, because it tends to
backfire in a big way. Here are two examples of
backfiring in a big way. Example one, ten days before
trial the district court slammed the courthouse
doors to these plaintiffs. If I never have to
read a brief again that talks about slamming
the courthouse doors, I will be a happy camper. Overused phrase, strike
one, high rhetoric, strikes two, three, and four. These plaintiffs are mystified
at the lower court's ruling. This is the same case that
Chris mentioned earlier. This was the theme of
the plaintiff's briefs, that the district court was
in cahoots with the defendant, a pharmaceutical company. And that is not a theme
that's going to go over well with any appellate judge. Second example, respondent has
prevailed in this litigation by chance because of the
randomly chosen composition of the particular
appellate panel. Here's a memo. All appellate panels
are chosen randomly. That's the way it works. And to assign that kind
of random selection to relegate it to caprice
casts such aspersions on the Court of Appeals
as to be laughable. This was in a cert
petition that was filed against one of Chris' clients. CHRIS HANDMAN: It also
signals that you don't really know what you're talking about. I mean, as Cate said, all
panels are randomly assigned. So to kind of attack that is
going to signal to the court that these jokers
really don't know-- they don't do this for a living. And they don't really
know what's going on. And if we can't trust
them to basic procedure, probably means we
can't trust them to do other things as well. CATHERINE STETSON: Right. One last don't, and this
is a huge, huge pet peeve of mine and of the judges
that I've worked for. Don't make mistakes. And I'm not just talking about
legal or strategic errors or hiding bad facts
or other things we've been talking about. I'm talking about silly things
like typos and proofreading. And when I talk
about proofreading, I don't mean let
the little machine that lives in the computer
do the proofreading for you. Because the little machine
that lives in the computer doesn't get some things right. It doesn't know whether the
apostrophe goes between the T and the S or after the T and
the S when you write it's. Because the little
machine doesn't know how you're using it. You have the responsibility
to proofread, not the machine and not people who
are working for you. You should be proofreading
your documents. You would be appalled
at some of the things that we've seen, including my
favorite was a caption that was filed by an agency
lawyer that referred to the Court of Appeals
in which the case was-- the brief was being filed as the
District of Colombia Circuit. Colombia is a very
different place than the District
of Columbia Circuit. And the huge error on the
cover page of the brief got passed over by
whoever looked at it. Don't do it. You lose credibility
with the court with every single proofreading
error that you make. It's just not worth it. It's such-- so easy to fix. CHRIS HANDMAN: And this is
the real closing coda here, which is, after you proofread,
you revise and keep revising. And these briefs are
not one draft phenomena. You need to craft your brief. You need to go back to it. You need to keep constantly
refining the argument. And we can't emphasize
enough how important that is to simply crank out the
first draft and to think, wow, this looks like a pretty
persuasive piece of advocacy is flattering. But it's probably wrong. It might do the
job to some degree. But it can always be better. And it can be shorter. It can be tighter. You can identify arguments. You can position
them, craft them in a way that's going to be
more palatable to the court. There are always ways. And you should always continue
to refine that work, as with any piece of writing. But at the appellate level
and certainly in our practice, Cate and I take an
immense amount of pride in the written word. And I hope anyone who
is engaging in a brief will share that same
concern for making sure that what they
convey on paper is going to be as great an
expression as they possibly can do. And that can only come about
through careful revision and critical examination. And then the proofreading
and the proofreading again, as Cate
mentioned, you don't want to mar an otherwise
intellectually fabulous brief with a few sloppy
careless errors. And again, the grammatical
checker and the spellchecker, they are poor substitutes
for the old fashioned way of reading it very closely. And it can get to be a bit
of a hassle to proofread yet again a 50-page brief. It takes some time. But it's time well invested. And it's certainly something
that I think we always expect. And I think the
judges expect it. CATHERINE STETSON:
And these admonitions hold true even if it
is 3:30 in the morning and you have to turn in
your brief the next morning to the moot court board. You still stay up until
4:00 and get it done right. If you're going to turn
it in, get it done right. Thus endeth the lesson. [APPLAUSE] We have a little
time for questions. [INAUDIBLE] CHRIS HANDMAN: Sure. AUDIENCE: If the judge--
if you know the judge or [INAUDIBLE] reads the
briefs in reverse order, does that change how you lay out
your briefs or your [INAUDIBLE] strategy at all? CATHERINE STETSON: It's hard-- let's see. If you know-- the question is,
if you know the judge starts with a reply brief,
as you often-- as judges often do,
does it change the way you set up your opening? I don't think it does, except
when it comes to the reply. You want to make sure the
reply brief in general probably is a little bit more
of a standalone creature. You don't want to make
assumptions, again, about acronyms or
esoteric language. Find a way without reprising
your entire opening brief to set a little bit
more of the scene maybe. But that's a pretty-- you know, you should
do that in a reply anyway on the
assumption maybe that it could be the first
brief that's picked up. Because you never quite do know. CHRIS HANDMAN: I
mean, that's my-- one, it's rare except in
maybe the DC Circuit to even know who the
panel is going to be when you write your briefs. CATHERINE STETSON:
That's true, too. Yeah. CHRIS HANDMAN: So it's really
a-- you're playing the odds if you try to engage in that. Another thing, too,
is I'm not really sure how I would do it differently. Because I hope my reply brief-- it's like picking up book three
of the Harry Potter series. You should be able
to pick it right up and understand the
whole history that's led up to it right until then. It doesn't mean you
recite the whole thing. But the reply brief should be
able to position your arguments in a way that someone coming
to the case immediately will be able to grasp. They may not understand
all the nuances. And hopefully those
citations in your reply brief to your opening brief
will lead the way. But I don't think I would write
my reply brief any differently. I would hope that that
judge would be equally-- find it equally
accessible as anyone else. CATHERINE STETSON: It is a
good practice for a law clerk, if you all are thinking
about clerking, to start with the reply brief. That is useful in
those circumstances to read backwards. But it's hard to
figure out if you do it any differently as a
lawyer, knowing that it's going to be read first. The answer is probably
no but certainly good practice from
that side of the bench. More questions. AUDIENCE: I had a question
about dealing with-- you mentioned a couple
of times dealing with if you've got a lot of-- say you've got a really
complex regulatory scheme that has to be explained. And the court isn't going
to have all the background. And parts of that
regulatory scheme are things that you're
going to focus on, and parts are what
your opponents are going to focus on. And, yet it's more-- it makes it more
intelligible to write it out perhaps more
like a memo style where you explain the
whole regulatory regime and then make your
arguments off that. Does that bother you? Do you feel that
that gets in the way of presenting your argument? Or is it better-- in other words, is it
better to kind of split it up and maybe
diminish the prominence of the parts of the
regulatory scheme that are favorable to the other side? Or should you give
it all out at once so that it makes more sense to the
court, then make your argument? CHRIS HANDMAN: Well,
it's a great question. And I guess, like so many law
questions, that, you know, the depends probably comes in. There's no one size fits all. But here's the
way I might handle what you're talking about. When you have a complex
regulatory or statutory scheme, I think it's helpful to
ventilate that in the facts section, in the
background section to give-- because that's
I think quite fair. If your case is involving
this regulatory scheme, well, you can't meaningfully
evaluate the facts unless you know how those
facts fit into that scheme. And I think you see that
often in briefs where you set forth here's the way
the scheme works. And of course, as you do
so, heed our admonition to make sure you're
posturing, even there in the facts section,
the background section, a way in which it looks
like the court's going to know how you've teed
that up, how they should view that regulatory regime. When you get to the
argument section, you've now already canvas-- you've already set that forth. And you can refer
back to it at times. And of course, you
can't just simply say, go see the whole thing. You'll have to quote from
those provisions that are favorable to you. You'll have to
distinguish those that are going to be cited against you. But that background,
that whole or context, will have already been
set forth in your brief and tee up what you're going
to say in the argument. At least that's the way I
think I would handle it. CATHERINE STETSON: Yeah,
I mean the one thought that occurred to me right
at the end of your question, I think you kind of
answered it yourself. Because you said,
or should you do it in the way that makes the
most sense to the court? CHRIS HANDMAN: Right. CATHERINE STETSON: And I think
if that's-- if that's what you're confronting,
you know, do I-- do I kind of posture for like
an advocate or do it in the way that makes no
sense to the court? Always choose door B. One way
to do it so that you don't-- so that you don't run
the risk of bogging down your factual narrative or
the story is oftentimes in a complex regulatory appeal,
you break your facts section into two subsections, one
statutory and regulatory background. And that looks an
awful lot like a memo. It has the statute from
whence the regulation sprang, the regulation, and
the history of the regulation, and so forth. And you can do that without
too much mustard on it. Because you're
just, as you said, if you're the first one
getting the opportunity to put these regulations
in front of the court, do it straight and do it all. So that you can't be accused
of backloading anything that could hurt you later. Deal with the impact of the bad
sections later, but get it out in the statutory and
regulatory background in those circumstances. CHRIS HANDMAN: But-- and I
think that's exactly right. But even there, there
are, again, subtle-- facts sections you have
to play it straight. But there are opportunities
to subtly inject a bit of advocacy in there. For example, you can
set forth the scheme. You can dryly say, here's
what this provision says. And here's what
this provision says. It's also equally
factually true to say, Congress introduced this
provision in response to this particular concern. Well, if that
concern is something that you think would animate
the judges in your favor, or if you think it's a
particularly compelling equity point that is at
issue in your case, well, that's a
good thing to say. It's factually true. It actually gives a
little more color. It allows the court to view
these in a richer context. And it lets you position
that in a way that propels your argument ultimately. CATHERINE STETSON: Yeah,
that's a good point. AUDIENCE: Maybe one-- one last
question for the panelists. I just have one quick
question myself. CHRIS HANDMAN: Sure. AUDIENCE: You mentioned
putting your best foot forward and focusing on those
specific arguments that you're strongest on. I just wondered if
you could comment on whether you think
that that equally holds in the district
court level as well as the appellate court. Because it seems that
there's more opportunities to lose issues on
appeal [INAUDIBLE] issues in the district court. CATHERINE STETSON:
You know, that's true. That's absolutely right. And that's a good distinction. You can make
considered choices when you get to the appeal
about what arguments are your strongest, what you're
most likely to prevail on, what might bog you
down when you start throwing in lesser arguments. But your point, I think,
goes to a waiver issue. Which is, when you're
in the trial court and you have only
one opportunity to make all of your
arguments to the trial judge or forever lose that
opportunity on appeal, your calculus becomes
much, much different. And you take kind of a
broader array of issues. That array, depending
on the resolution and depending on the
standard of review that gets afforded those issues,
then tends to funnel down on levels of appeal. But you're absolutely right. In the district court, it's a
very different type of inquiry. CHRIS HANDMAN: Yeah,
that's exactly right. But be that as it may,
it's not an invitation to be indiscriminate. I mean, you still want to
bring a critical eye to that. Because put yourself
in the position as if you've lost
and now on appeal, if you wouldn't bother
to raise it on appeal, think long and hard
about whether you want to raise it in district court. There are borderline calls. And the district
court is the time to raise it if you're
going to raise it at all. Because, as Cate said, it's
going to be waved forever. But, you know, you
might imagine a case in which you could
raise theoretically eight or nine or 10
different arguments. Well, you might want
to raise only two or three in the
appeals court and maybe try to find your six best, or
your five best at the district court. It's not to say there aren't
going to be situations where you want to raise all of
them and go across the board. But you do still want to
have some editing function in what you're going to raise. CATHERINE STETSON: Yeah, I
mean if your argument stinks in the district
court, it's not going to smell any better in
the Court of Appeals. But on the margin, if
there's a borderline call, you call in favor of the
argument in the District Court for the reason
that you identified. CHRIS HANDMAN: Absolutely.
