June 3, 2008

Challenges of Appellate Brief Writing

I've had a particularly interesting project at work for the past several days -- a petition for a writ of mandate after a judge totally blew a call and threw an entire lawsuit into disarray. I like this sort of work because it lets me dig deep into the law and do serious writing.

Well, sometimes. In this case, it's more of a lot of recital of procedural history and pounding, pounding, pounding on the plain text of the statute. Because there is no case law interpreting the statute at all. There is only one case in the history of California law that even mentions this statute and it's been depublished.

My friend who is a whiz at appeals says that's not a problem, just work the law of statutory interpretation and guide the court to the result, which I've been doing. I'm grateful for his help. And the absence of case law does at least pare down the task before me to one that lets me do good legal writing. "Good legal writing" isn't what popular culture says it is -- it's not a series of lengthy and confusing sentences full of mellifluous verbiage obfuscating and vitiating teleological argumentation and cumulating only superfluity and vituperation. Quite the opposite. Good legal writing uses simple phrases to frame an issue so that the reader's response is "of course." It leaves the reader thinking that no other result that could possibly be reached.

The result is that the brief seems repetitive, it seems to reach the same point again and again and always in the same way. And kind of boring as a result. I keep on telling myself that's good. What matters is prevailing, not producing a work of art or the Great American Novel. If I want to be expressive or have a variety of subjects and a variety of styles in my writing, that's what this blog is for. I write an average of three posts a day here (464 so far this year, which is one short of exactly three posts a day for the entire year) and I think I approach a pretty wide range of subjects in a good mix of different ways. But an appellate brief is something else entirely.

And another thing I've noticed about having this big, labor-intensive project. It changes my attitude about going to court. I have real work to do. Going to court this morning will be a distraction from finishing the real job. I don't have time to go to court, I'm a litigator.

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