Some time ago, I received an email from a lawyer complaining about one of my columns, where I had quoted one of my reply briefs. I had written: “In our opening brief, we contended that …” The lawyer didn’t like it. “You’re a wuss, Moskovitz. Your opening brief didn’t merely ‘contend.’ It ‘showed!’”
Here’s my response to him: When we look at it from the reader's point of view, “contended” is better than “showed.” The reader (judge or research attorney) might react to “showed” by thinking, “Hey, who does this guy think he is? It's my job—not his—to decide what's been shown.” I prefer to appear more modest, and let my arguments on facts, policy and law do the talking.
You might well react to the above exchange with “Can’t you guys find bigger nits to pick? Do you really think the choice between ‘contended’ and ‘showed’ will determine whether you win the appeal? Get a life!”
Well, closely examining the fine details of appellate practice is my life, at least professionally. But the question deserves an answer: is this just an idiosyncratic obsession, like collecting fingernail clippings? Or does it matter?
It matters. Paying close attention to a multitude of small points will help you win more appeals.
Take the manager of a big league baseball team. Before the game begins, he must choose his starting pitcher. Then, in the first inning, he must decide whether runner # 1 should try to steal second base. In the second inning, he must decide whether batter # 8 should bunt or hit. In the third inning, he must decide whether to reposition his shortstop. In the fourth inning, he must decide whether batter # 3 should swing at a 3-1 pitch. And so it goes, one decision after another, throughout nine innings (or more).
His team won. Which one of his 100+ small decisions won the game for him?
There’s no way to tell. But you can be pretty sure that the manager who makes more good small decisions than the other managers is most likely to win a game. And if he does it every game of every season, he’s more likely to have a successful career.
He won’t win every game, of course, because there’s too many things beyond his control. He might make the right call in directing his batter to bunt, but the batter might strike out instead. And he cannot control how the umpire called the pitches—balls or strikes.
But the manager who views these decisions as unimportant—the one who says “What the hell. It doesn’t matter much whether he bunts or not”—will find himself back in the bush leagues pretty quickly.
It’s the same with appeals. I can’t control the mood of the appellate judges or what’s in the record, but I can improve my odds by paying attention to every detail and making the best decision I can on every little thing.
So that’s what I do.
Every heading, every word, every comma matters to me. Individually, each counts for just a little bit. Collectively, they create an impression. My overall goal is to end up with a brief that cries out the justice of my cause, is free of all fluff that detracts from my cry for justice, and is clear as a bell, enabling the judge to read every sentence only once and sail through the brief in a single sitting—and enjoy reading it.
So I make a thousand small decisions to advance those goals. I notice that my use of the pronoun “he” in a sentence is a bit unclear, because the prior sentence mentioned two men by name. So I change “he” to the man’s name. I cited three cases in support of a proposition, but notice that one of the cases might be distinguishable on the facts. So I delete it and go with the other two. One of my discussions goes on for six pages, and could use a subheading to break it up into more readable segments. So I add the subheading. While worked up a bit, I had included a strong adjective (“obviously” or “utterly”) that makes me look strident, so I delete it. One sentence needs a comma to make it clearer, but that other sentence has a useless comma that needs to be deleted.
I do this constantly. I might write 15 pages one day, but I begin the next day (and every day after that) back on page one—editing, honing, trimming and revising. Word by word, syllable by syllable, and comma by comma. I want the final product as perfect as I can get it.
So for me, saying “contended” rather than “showed” does indeed matter. And I’m delighted when some lawyer calls me on it, arguing that I made the wrong small decision. I’m always willing to examine my work more closely and learn to do it better.
Picking nits well is what makes one a professional.
by M.A.T. Legal Director Myron Moskovitz