The following sentences have appeared in many of the appellate briefs I’ve reviewed over the years. What—if anything—is wrong with them?
• “Appellant has utterly failed. . . .”
• “The trial court was obviously wrong.”
• “The meaning of the contract is crystal clear.”
• “Appellant relies on cases that are completely irrelevant.”
• “Respondent shamelessly asserts that. . . .”
“Utterly?” “Obviously?” “Crystal clear?” “Completely?” “Shamelessly?” Why are those words there? If you omit them, is the persuasive impact of the sentence reduced at all?
It’s hard to find a brief that does not include strong adjectives like these—many times. But why? Do they help? Or do they hurt your chance of persuading the judges?
Let’s begin by exploring what might be going on in the mind of the writer of these words. And then we’ll take a look at what’s probably in the mind of the reader who reads them.
The writer probably thinks, “I need to persuade the appellate court that the trial court’s interpretation of the contract was erroneous. ‘Crystal clear’ is stronger than ‘clear,’ and ‘obviously wrong’ is stronger than ‘wrong.’ So I have a better chance of convincing the judge if I write ‘Because the meaning of the contract was crystal clear, the trial court’s ruling was obviously wrong.’”
But now consider what the reader (the appellate judge or staff attorney) thinks when she sees those adjectives. Most likely: “We have well-established ways of deciding whether the trial court’s interpretation of the contract was right. We look to the language of the contract, the purpose of the contract, and sometimes extrinsic evidence of the parties’ intent. We will employ these methods in this case. The advocate’s use of the words ‘crystal clear’ and ‘obviously’ adds nothing to our analysis. We will pretty much ignore them. But they do make us a bit suspicious of his position. Maybe his ‘crystal clear’ and ‘obviously’ are his efforts to achieve with bombast what he’s unable to achieve with his argument on the merits. If the situation is indeed ‘crystal clear’ and ‘obvious’, the facts will lead us to those conclusions—and we won’t be influenced by his telling us it’s ‘crystal clear’ and ‘obvious.’ Or maybe he uses those terms simply because he always does, or because he feels he must mimic every other lawyer who writes that way to keep up with the crowd, or because his boss or client expects it. But to us, it’s just meaningless fluff.”
Put yourself in the Shoes of the Decider. If you were the judge, would those adjectives make you more likely to rule for the lawyer who used them?
A federal judge once said to me, “Why is everything ‘crystal clear’ to the lawyers when it’s not crystal clear to me?” Judges are smart and experienced. They are persuaded by facts, law, and policy. They are not easily bamboozled by lawyers’ lingo—especially when they see it so often. Viewed from the bench, the adjectives get old pretty fast.
I write bold briefs, but I never use terms like “crystal clear.” In fact, I rarely use “clear.” When I do, it’s usually to convey a different meaning. I might say that a trial lawyer expressed his objection to evidence “clearly”, rather than vaguely. But I would not say that his objection was “clearly” right. What’s the point? If I can’t convince the judges that the trial lawyer was simply “right”—based on the law, facts, and policy—saying that he was “clearly” right will not change their minds.
So in the above examples, I would say simply:
• “Appellant has failed. . . .”
• “The trial court was wrong.” (Actually, I usually say “mistaken” rather than “wrong.” It’s gentler.)
• “The meaning of the contract is . . . .”
• “Appellant relies on cases that are not on point.”
• “Respondent asserts that. . . .”
Then say why. That explanation—not the adjective—is your only chance of persuading the court.
A few words on what I call the “attack adjective.”
I received an opponent’s brief in an appeal I handled. Like many lawyers, this attorney employed a familiar tactic: using strong adjectives to denigrate our arguments. I see this often, and I have a pretty standard way of responding. Here’s how I dealt with it in my reply brief:
Respondents call our opening brief’s analysis of Section 5(a) of the contract “convoluted and tortured”, “full of holes,” and “absurd.” We prefer not to respond in kind, but we note that Respondents’ extensive discussion of that Section is incomplete, for the following reasons. . . .
This approach (1) briefly reminds the judges that my opponent used terms that are not very professional, without harping on it, (2) tells the judges that I am professional, because I refuse to play that game, and (3) quickly gets to the merits of his argument, which is what really matters in winning an appeal. Maintaining your credibility plays a big part in persuading a court. He’s squandering his, while I’m doing my best to keep mine.
Drop the adjectives. Don’t say it, show it—with the facts, policy arguments, and the law. And if your opponent employs invective rather than insight, make him pay for it—by calling the court’s attention to it, very briefly.
by M.A.T. Legal Director Myron Moskovitz