The Bench Blog’s Santa asked Wisconsin Supreme Court justices and Court of Appeals judges what they want in their appellate Christmas stockings.
The answers, provided in emails, offer a view from their benches as well as advice about how best to persuade them.
Justice Patrick Crooks wished for briefs “focused on the main issue or issues, and readable.”
Court of Appeals Deputy Chief Judge Michael Hoover said he wants “clearer, less redundant arguments that forego what have the appearance of nothing more than an attempt to improperly sway a jury.”
In wishing for “better briefs,” District 4 Court of Appeals Judge Gary Sherman was clear with his advice: “Be organized and make sure that your logic is plain to the reader and follows a direct path methodically. Short paragraphs made up of short sentences helps bring this about.”
Sherman added that “after stating the standard of review, follow it. Too many folks just give lip service to the decisional standard. We don’t.”
In a similar vein, District 4 Presiding Judge Brian Blanchard would appreciate “a statement of what, specifically, the circuit court got right or wrong, taking our standard of review into account.”
District 1 Judge Kitty Brennan wished for “clear, fully supported arguments.”
District 3 Judge Lisa Stark echoed that by wishing for “fully developed arguments with citation to appropriate legal authority.”
Bringing a different perspective, Justice Pat Roggensack wished for “lawyers who do not concede legal issues. Concessions on facts are quite all right, but concessions on legal issues often get in the way of the court’s having full briefing on all that the case presents.”
Accurate references to the record
A number of judges emphasized references to the record. Blanchard wished for “references to all facts pertinent to the argument and where those facts are found in the record.”
Similarly, District 1 Presiding Judge Patricia Curley wished for “briefs that have record cites for all facts.” That brings the appendix into focus, which she wished was “under two pounds.”
The desire for better appendices is based on the kind of problems reported by now-retired staff attorney Coleen Kennedy. A troublesome appendix “would include random pages of transcript or documents without indicating what witness was talking or where the pages could be found in the record.” Such an appendix is “useless if the content’s location in the record cannot be verified.”
She added: “Some lawyers would put things in the appendix that weren’t part of the record or have random transcript pages of a discovery deposition, for example, that had been appended to a summary judgment motion or affidavit, yet in their brief would imply that it was trial testimony. … So the appendix was used to confuse or lie about the record.”
In addition to such dishonesty in an appendix, appellate judges noted the need for forthrightness in the body of the briefs. Thus, District 2 Judge Mark Gundrum wished lawyers would “acknowledge and be forthright about the weak aspects of their case and then deal with them, rather than hoping the opposing party does not address them (which it almost always does) or we don’t otherwise learn of them. Few things are more frustrating than having a party present an inaccurate picture of the facts or the real issues on appeal, only to learn later that the party was being less than forthright.”
Sherman’s wish for accurate references, both legal and factual, came with a warning. The references should “actually support what you claim. If you over-reach, we will know. We check.”
Court of appeals judges face interesting challenges. Curley asked for “no handwritten briefs.”
Sherman wished for printing on only one side of the page.
District 2 Judge Paul Reilly’s wishes reflected the fact that court of appeals judges are sandwiched between trial courts and the Supreme Court: “My wish would be that trial courts continue their fine work and that the Supreme Court opinions begin to have clarity, and are logical, pragmatic and courteous.”
The most common wish by far was for concise briefs. According to Hoover, “Shorter briefs would be ideal, and, in most cases, easily achieved (‘in this particular case’ should be banned from the English language).”
Stark, with help from staff attorney Don Romundson, put his request to the tune of “All I Want for Christmas Is My Two Front Teeth.”
“All I want for Christmas are some clear concise briefs, a short statement of relief, and no more petitions for mandamus relief. All I want for Christmas are some clear concise briefs. Then I would wish you a Merry Christmas.”
Brennan wished for briefs that could “say it all in less than 3,000 words!”
Succinct briefs was the most frequent wish, so it is nothing short of remarkable that so many attorneys fail to understand that the more concise a brief, the more potent it is, and thus more persuasive.
Justices and appellate judges read so many briefs and petitions that slogging through redundant, long-winded ones is burdensome. Worse, they increase the chance that an attorney’s point will be missed. And they insult the intelligence of the reader.
Putting her finger on the cause of overly long briefs, Brennan wrote, “I have made this longer … because I have not taken the time to make it shorter.”
Succinct briefs require multiple rounds of editing, and objective editing requires distance from the material, at least a night’s sleep before a third or fourth review.
Otherwise your brief is just a lump of coal in appellate Christmas stockings.