The ABA Journal quotes Justice Kennedy saying “I’ve never read a brief I couldn’t put down in the middle. It is not the best part of the job.” (Thanks for the pointers from The California Blog of Appeal and Legal Writing Prof Blog). Assuming the comment was directed to the quality of writing rather than attention span — this is a pretty damning indictment of appellate practitioners.
This started me thinking about what makes a good appellate lawyer. Writing, I fear, is the last thought that comes to mind for many attorneys. It should be the first, however.
Think about the great trial practitioners. What sets them apart is their ability to tell a story to the jury, using witnesses and their own argument. The appellate lawyer, by contrast, ought to be known for his or her writing. Communication is still the key, we just use a different medium.
In my old job I spent quite a bit of time hiring, training, and evaluating attorneys for a firm that worked primarily in the appellate forum. I told the new attorneys that the position required a career-long commitment on their part to improve their writing. If that is something you enjoy, then appellate practice is the right place for you.
This New Years, I am resolving to take some of my own advice and work on my writing. That does not mean that you can ignore the other elements of appellate practice. You need to understand what you can accomplish in the appellate forum and the standard of review the court will apply. You also need to bring you superior legal analytical abilities to bear.
That said, however, if the court does not read your brief all of that other effort is wasted.