Posts Tagged ‘Appeals’

Steering the Broken Machine

Wednesday, November 25th, 2009

Mississippi Gas Chamber

The Last Lawyer: The Fight to Save Death Row Inmates
By John Temple
2009 University Press of Mississippi, 234 pages, $25.95 :: Barnes & Noble

The world is loaded with books about criminal lawyers. They fill the shelves in the mystery and thriller aisles, dominate true crime and related nonfiction genres. After all, a book about what we do is almost a guaranteed page-turner. Conflict? We got it — trials, accusations, at least two sides fighting in every case. Character? Our characters range from the noblest of all to the most despicable and inhuman. Plot? It’s already there, from the crime to the acquittal or execution. And the stakes couldn’t be higher. We’re not fighting over love or money, we’re fighting for people’s lives and liberty.

So it’s no surprise that there are so many John Grishams out there, and so many nonfiction books about criminal defense. And with so many books out there, you’d think that there would be plenty that give a fairly accurate insight into what criminal practice is really like.

And you would be wrong.

For it is rare indeed to find a book that really does the job. There are plenty that entertain, grip the reader, and even have something worth saying. But books that really draw the reader into our world, and let the reader see it with our eyes and our experience? Such books are few and far between.

Which is why we were genuinely delighted to read The Last Lawyer, by John Temple, an associate professor of journalism and associate dean at West Virginia University. Temple is not a criminal lawyer, he’s not a mystery writer, and that’s a good thing. He’s the kind of writer who comes from the outside, and digs deep into his subject. Like the lawyers and investigators he describes in this book, he clearly put in the time and effort to find out what really happened, who did it, how it happened, and why. And then he took all that data and crafted it into a story that is no less powerful simply because it is true.

True stories almost always suffer from bad writing. “But that’s how it really happened” is a crutch for lame writing, an excuse for having told a story poorly. Yes, real life does not play out according to a scripted dramatic formula. But that doesn’t mean reality can’t be presented that way. The Last Lawyer, however, tends to avoid this trap. With few exceptions, Temple grabs the reader and doesn’t let go.

So okay, he’s a good writer. But what does he have to say? That’s the best part.

Because Temple really gets it. He really, really gets it. If you read only one book in your life about what it’s like to be a criminal defense lawyer, read this one.


When we’re reading a book that particularly engages us, it’s like we’re having a conversation with the author. We find ourselves picking up a pen and scribbling back at him. Books at our house sometimes become dog-eared and annotated beyond any hope of resale. Our copy of The Last Lawyer quickly joined their ranks.

Why, when we already do this stuff for a living? Were we picking fights, or pointing out errors? Not at all. Instead, we frequently found ourselves encountering an insight, or a way of looking at things where we hadn’t looked at it ourselves that way. And we’d go “oh!” or “aha!” And then we’d take that fresh insight and run with it a bit in our head, and it would lead to a new thought we’d always sort of known, but had never actually thought before.

Not as much as we do when reading Proust, Patrick O’Brian or Terry Pratchett. But often enough. Often enough.


The Last Lawyer takes you through Ken Rose’s decade-long fight to appeal the capital conviction of Bo Jones, a low-IQ Black man sentenced to die for a 1987 murder.

Trial counsel had done little of the work that needed to be done now, and the case had to be investigated from scratch.. Uncooperative witnesses, some who lied and others with good reasons to lie — these were the least of their worries. They had to deal with a client who just did not seem to get the concept. And worse, judges who didn’t get the concept, and couldn’t be bothered to make the effort in the first place. Prosecutors who were the opposite of sympathetic, who railed against attempts to make technical legal arguments, but who were perfectly happy to get a conviction on technicalities themselves. A broken legal system that, instead of seeking justice, becomes a machine for churning people into prison or the gas chamber.

The book takes you through ten years of this struggle, as Ken Rose and his team slowly and gradually discover the facts and arguments they need to save Bo Jones’ life. In the process, you get to see firsthand the best and the worst that our system has to offer. Like any other human enterprise, you see a handful of outstanding performers, another handful of ruinous subverters, and a huge majority of folks just going along to get along. You see a system with powerful inertia.

Our adversarial system is designed to achieve justice, but it needs honest and good-faith opposition to function properly. Both sides need to play by the rules, and try their best, if justice is going to result. And it needs judicial referees to keep a keen eye out, not only for fouls, but for merit as well. But the reader of this book sees law enforcement that isn’t always as honest as we expect it to be, prosecutors who stop trying to seek justice and instead get invested in winning at all cost, defense attorneys who stop protecting their client above all else and instead become mere grease in the wheels of this machine. And judges who have seen so many frivolous arguments that they can’t spot the valid ones any more, and who aren’t terribly inclined to look for them in the first place.

But there’s more to it than that. It’s not just the broken system. There is good out there. And you get to see that, too. The single most important variable in whether a case is won or lost is preparation. And you see how good lawyers prepare, do the hard work, take the time to do the job right. You see real dedication, not to ego or money or advancement, but to saving the life of a fellow human being. To seeking real justice. To making the system a little bit better, for all of us.

This is the day-to-day experience of a criminal lawyer. The sometimes odd personalities, the deep injustices, the soaring heights of the human spirit, and everything in between.

Go get the book.

5 Tips for a Killer Appellate Brief

Thursday, August 13th, 2009


We’ve seen too many appellate briefs that suck. They’re too hard to follow, demand too much effort to figure out, and give clerks and judges every reason to stop paying attention. There’s no excuse for such bad writing.

There are tons of books and treatises out there on how to write a brief. Many of them are quite good, giving thoughtful, clear and detailed advice on writing compelling briefs. But obviously, there are tons of lawyers who haven’t gotten the message. Maybe it’s because they can’t be bothered to read a whole book on the subject.

So for those who want to improve their appellate writing skills, but don’t want to wade through a whole book about it, here are a few suggestions:

1. Be Brief.

It’s not called a “brief” for nothing. But some lawyers tend to write as if they’re getting paid by the word. That is a huge mistake.

Judges and clerks have to read these things. A brief that’s super wordy, taking forever to lay out the facts, taking forever to reason out an argument, taking forever to complete a thought… let me tell you right now, nobody wants to read it. A judge is going to stop reading carefully if you keep making the same point over and over. A judge is going to stop reading carefully if you’re using dozens of paragraphs to make a point you could have made in three sentences.

You may think you’re being artful and brilliant. You may think you’re advancing your case by laying out your thesis as thoroughly as possible. You may think that your lengthy discussions are causing the judges to spend more time considering your points. But in reality a repetitive, verbose brief is only going to wind up being skimmed. Judges will actually spend less time reading it.

A brief that gets to the point, however, is the mark of a good lawyer. That’s really what judges think. The fewer words your brief has, the more likely they are to think you have the winning argument, before they even turn a page.

Also, the more concise you are, the more attention your words receive. Instead of diluting your thoughts in a sea of verbiage, you’ll make them stand out. Judges and clerks will pay more attention to what you say. Fewer words make each one more valuable.


2. Don’t Overdo It.

Pick and choose your arguments. Don’t waste time with lame ones. Way too many lawyers think they have to throw in everything they can think of, for fear of waiving a valid issue. But that’s just lazy and stupid. If an argument is a loser, what do you care if it’s waived?

Including weak garbage in your brief only weakens the reader’s trust in you. You may have a good, solid point in there, but now it’s tainted by association with the lame points you included out of misguided “thoroughness.” It makes you look dumb, because you obviously think those arguments have merit.

A good brief selects only the strongest arguments. By focusing only on the issues where a valid case can be made, the lawyer earns the trust of the court. And the court winds up focusing on your best points, without distraction.

Also, put your best argument up front. Don’t stick it in the middle. Just because it involves the third of five elements, that does not mean it has to be the third point. Start winning on page one. Give the court the easiest path to rule in your favor. Arrange your points in order of effectiveness.


3. Get Organized.

A poorly-organized brief is the surest sign of bad lawyering. Arguments are disjointed, without a simple and compelling logical flow. Fact sections are confusing, presenting the events in no logical order. Important thoughts are buried, so the reader doesn’t realize their importance, if they’re noticed in the first place.

Poor organization means you don’t understand what you’re saying. If you can’t explain what happened in a straightforward narrative, then you don’t really know what happened. If you can’t make an argument in a simple syllogism (the law says “if A then B;” the facts are A; therefore B) then you don’t understand the issues.

Poor organization screams to the judge that your brief is the loser.

Good organization is not hard to do. It can be time-consuming, but it’s not rocket surgery.

First, the fact section. Presuming that you’ve spotted the issues already (you do know why you’re appealing, don’t you?), draft a narrative of the facts with those issues in mind. Do not be one of those idiots who just plugs in facts in the order they popped up in the transcripts below. And don’t just plug in everything that happened, whether it’s relevant or not. Write a story. Make a point.

This is not argument. Don’t argue in your fact section. But by all means be persuasive. Emphasize the facts you want emphasized. Carefully choose your language. Humanize your client. Make language your tool, your weapon.

The best way to tell the story is to do it chronologically. Start at the beginning: Who are the players, what was their relationship, and how did this all get started? Then describe the facts as they progressed. Your source material will of course not be organized this way, but you must organize it this way. In doing so, you will master the facts, if you haven’t done so already. And more importantly, your readers will master them easily and quickly.

Do include all relevant facts, even if they hurt you. Leaving them out only damages your credibility. Where facts are in dispute, present your version of the facts — but be sure to indicate that this is only your version. (You could say “there is evidence that…” for example.) Let the other side present its version, but don’t be dishonest and write as if yours is the only one.

Next, organize your arguments. Argument should be as simple as a syllogism. State what the law is. Explain how your facts fit the law. Then apply the law to your facts like a formula.

Obviously, your real work is the second step, explaining how your facts fit. But you’d be amazed how many lawyers don’t even bother with figuring out the first part. It’s just a matter of looking up the controlling law and saying what it is. So do it. (And don’t be afraid to base a rule on simple common sense from time to time — the law is not the only principle we live by.)

Likewise, the third part should be as easy as pie. “Applying this rule to these circumstances, we therefore get this result.” Not exactly an exercise of brainpower. And yet lawyers screw it up. They misapply the rule (demonstrating that they don’t understand it). They misapply the facts (demonstrating that they haven’t mastered the case). Worst of all, some lawyers don’t even bother to state the conclusion! They just throw out a bunch of law and a bunch of facts, and leave it up to the reader to figure out what it means.

Be careful not to over-state the law. If that case doesn’t really say what you claim, you’ve just killed the credibility of your whole case. (One rule of thumb — if a citation doesn’t point to a specific page, then the case probably doesn’t say what the lawyer claims. So always give pinpoint citations, and make sure the case really says what you say it says.)

Break your argument down into its component parts. Each one should be organized Law, Facts, Conclusion. If you can’t do that, then you either don’t understand the issue, or you still need to break down your argument a little more. Your argument may have only one heading (“The District Court Abused Its Discretion in Denying the Motion”), but it may have to be broken down into several sub-headings.

You want your conclusion to be on solid ground. It’s the result of one big syllogism (“if a court abuses its discretion, its decision should be reversed; that court abused its discretion; therefore its decision should be reversed”). But the first and second premises may each need to be established through syllogisms of their own. Those become sub-sections of this argument point. Maybe there are several ways in which the court abused its discretion, too — these alternative theories become sub-sections of a sub-section.

This will also make your headings more concise and easy to follow. Judges and clerks love that. Section headings that take up a block of text are (a) not read, and (b) proof that your argument sucks.

If you’re thinking logically — if you’re thinking like a lawyer — then your arguments will naturally organize themselves as you read and revise your draft. When you’re finished, they’ll be brief, they’ll be compelling, and they’ll be effective.


4. Don’t Overdo It, Part II.

Show, don’t tell. You’re not writing for a soap opera. You’re not writing a children’s book. So don’t tell the readers how they ought to feel. Let your assertions speak for themselves.

So cut out the adjectives that characterize facts. Delete the rhetorical flourishes. Strike out all the fancy phraseology. You’re not making an emotional appeal to a jury, and rest assured that Judges resent it.

That’s not to say you can’t use some dramatic skills. The very best actors and orators know that, if you really want your audience to feel an emotion, don’t let them see that emotion on your face. If you act indignant, then you’re going to be the only one feeling it. But if you hold it back, and simply give your audience the reason to feel the injustice, without telling them to… they’ll be clamoring for justice before you’ve finished.

Although there’s no need to be dry and pedantic, you should by all means be straightforward and reasonable. Write as clearly as possible. Use the shortest sentences you can. Reason, not emotion, is how you get judges to agree with you. A matter-of-fact tone will raise you in the court’s estimation. It is the most compelling way to present a legal argument.

And God forbid you should ever cast aspersions on opposing counsel. Nobody cares that the other lawyer acted like a jackass to you. It has nothing to do with the legal issue before the court. Characterizing opposing counsel makes you seem petty, and indicates that you don’t have a firm grasp of the actual issues here.


5. Write the Opinion for the Court.

The best briefs make the clerks and judges work the least. The most effective style is one that writes the court’s opinion for them. Write the decision that you want published.

It often seems that lawyers don’t really understand their relationship to the appellate court. You are not the judges’ teacher. Neither are you begging on your knees. You are their colleague. You’re all on the same team. They have to make a decision, and your job is to help them make the right one.

If you keep that in mind, and act accordingly, you are going to shine. You’ll be respectful, but not obsequious. You’ll be a valuable help, not a condescending instructor. You’ll be “one of us,” and you will be taken seriously.

That carries over into oral argument, as well. But your brief will reflect this attitude, and add that much more credibility to your arguments.

So write the just and fair opinion that still rules in your favor. Don’t ignore the stuff that might hurt you — explain why it doesn’t. If there are inconvenient but relevant facts, deal with them. If there are cases that don’t go your way, take a moment to point out why they aren’t pertinent here.

Give the court the facts it needs to side with you, the law that enables it to do so, and the arguments that do it. Do that, and don’t be surprised to see your own words in the opinion that ultimately comes down.