In writing a brief it’s easy to fall into the trap of copying and pasting into your text a long passage from a key opinion that contains a thorough discussion of the critical issue and that court’s reasoning for its ruling. Certainly, you think, the judges of the court that you are submitting your brief to will want to see more than a sentence or two quoted from that opinion, and with a long quotation can read for themselves the entirety of the critical part of the opinion without having to search through the entirety. Isn’t that the proper approach?

Architectural sculptures and caryatids on the ...

(Photo credit: Wikipedia)

The consensus from judges and experienced appellate attorneys is that it is not. Far from it. The fact is, long block quotes are most likely to be simply skipped over by a busy judge with a stack of briefs to read who is thinking the lawyer who wrote the brief must have been too lazy to provide a proper analysis of the opinion. The late Judge Daniel Friedman of the United States Court of Appeals for the Federal Circuit offered this advice:

Quotations from cases are effective only if used sparingly.Quoting at length from opinion after opinion is a lazy way of writing a brief, and the finished product is likely to be unconvincing. Long before the brief approaches its end, the reader has begun to skip over its quotations.

9 Litigation 15, 17 (1983). In his book on appellate practice with Bryan Garner, “Making Your Case,” United States Supreme Court Justice Antonin Scalia also condemns such an approach:

Be especially loath to use a lengthy, indented quotation. It invites skipping. In fact, many block quotes have probably never been read by anyone. So never let your point be made in the indented quotation.

Finally, Judge Alex Kozinski of the Ninth Circuit Court of Appeals provided this criticism of long block quotes in a law review article on how not to write appeal brief:

Block quotes, by the way, are a must; they take up a lot of space but nobody reads them. Whenever I see a block quote I figure the lawyer had to go to the bathroom and forgot to turn off the merge/store function on his computer. Let’s face it, if the block quote really had something useful in it, the lawyer would have given me a pithy paraphrase.

B.Y.U. Law Rev. 325 (1992).

My own experience from having worked as a law clerk to the chief justice of the Alabama Supreme Court and then as a staff attorney to three associate justices of that court is that maintaining concentration while reading seventy-page appellate briefs for comprehension of the facts and legal analysis contained within is hard work, even if the briefs are extremely well written. That’s why asking the reader of your brief to dive into a lengthy, single-spaced block quote — itself likely containing quotations and case citations — in order to find the most important points fails to create persuasive legal argument. More often than not, long block quotes are simply skimmed over on the way to the following paragraph of argument. And once you’ve got the judge skimming over your brief instead of reading every paragraph with interest, your chances of losing the appeal are on the rise.

So what’s to be done? How do you handle discussion of the critical opinions your legal argument relies upon?  I plan to address this topic in my next Briefly Writing post, hopefully before the end of the week.

Advertisements