LAYING TRAPS
“Will you walk into my parlor?” said the spider to the fly;
“Tis the prettiest little parlor that ever you did spy.”[1]
In my salad days as an appellate lawyer, fresh off a clerkship with a California Supreme Court Justice, I believed my appellant’s opening brief should discuss the case and the arguments completely, leaving no stone unturned. That’s what we did when drafting opinions for the Court, and I saw no reason to write briefs any differently. This would show appellate judges that I was thorough and diligent, with nothing to hide.
As I’ve matured (?), I’ve become more strategic. Sometimes holding back a bit might lure my opponent into “the prettiest little parlor that ever you did spy.”
Here’s an example.
Trial lawyers sometimes bring me in on a case while there is still something going on in the trial court. Recently, a lawyer for a defendant who won at trial retained me to defend against the plaintiff’s upcoming appeal.
But before the plaintiff filed his notice of appeal, plaintiff filed a motion for new trial, arguing that the evidence supporting the judgment was false.
The defense attorney sent me the motion, and she told me that plaintiff’s attorney had simply misunderstood the evidence. She planned to write an opposition showing exactly how and why the plaintiff’s view of the evidence was wrong.
After hearing her out, I decided that her argument was correct. Nevertheless, I advised her to hold off presenting that argument in her opposition. I said, “Let’s take the long view. Is there a way this can help us win on appeal? Can we lay a trap?”
“A trap? What do you mean?”
I explained, “Well, you’ve convinced me that plaintiff’s attorney misunderstood the evidence, and the record allows us to show this. But plaintiff’s motion for new trial is very strongly worded. He sincerely believes he is right. Which tells me he will definitely make the same argument on appeal. Which is what I want him to do—because then I can then nail him with your argument about how he’s misunderstood the evidence.”
She asked, “Why bother? If my opposition shows him that his argument is wrong, he won’t even make that argument on appeal.”
I explained, “But I want him to make that argument on appeal. Success on appeal turns—at least in part—on the appellate lawyer’s credibility. If that lawyer’s appellate brief relies on an argument that is seriously mistaken, that tends to undermine his credibility regarding his entire brief. So if I can suck him into making a bad mistake, I increase our chances of winning the appeal.”
She understood the strategy, but still needed to ensure that she defeated the motion for new trial. So we discussed other ways to win it, such as the plaintiff’s failure to comply with the technical rules regarding when and how the motion must be filed. By doing this, maybe she could defeat the motion without tipping the plaintiff off about the weakness of his argument about the evidence.
While handling an appeal, I’m always on the lookout for similar opportunities. When representing an appellant, I think of arguments—and then I review the counter-arguments the respondent made in the trial court, especially in his post-trial motions. That gives me a good preview of what he’s likely to argue in his respondent’s brief on appeal.
I might decide to anticipate some of them in my appellant’s opening brief.
- If an argument was included in the trial court’s statement of decision or other ruling, I must respond to it in my opening brief. The appellate judges normally won’t read arguments made by counsel in the trial court, but they are sure to read the trial court’s basis for its ruling.
- I need to be careful not to waive an argument by failing to include it in my opening brief. I’m not allowed to make an argument for the first time in my reply brief—unless it is clearly a rebuttal to the respondent’s brief.
Where one of my opponent’s counter-arguments is not included in anything the trial court wrote, I might save my response for later—in my reply brief. My opponent is quite likely to make the same argument in his Respondent’s Brief. Let him—because I’m ready to clobber him in my reply brief and make him look bad.
Set the trap, then close it. Briefing-wise, when I represent the appellant, I get the last word (in the reply brief). The respondent can try to extricate himself at oral argument, but by then it’s usually too late, as the judges have probably made up their minds.
And if he never makes the argument, I haven’t lost anything.
Also, if I instead use my Opening Brief to anticipate his argument, I’d be giving him a chance to deal with it in his Respondent’s Brief, either by thinking of a way to deflect my counter-argument, or by simply disclaiming the argument. Why give him this free shot if I can avoid it by saving my attack on his argument for my reply brief?
While I’m working on my Opening Brief, I open a file I call “Reply—Ideas.” That’s where I note the traps I’m laying. Often, by doing this, I’ve essentially written my Reply Brief before I file my Opening Brief.
Avoiding my opponent’s traps is just as important as setting them. I carefully review the memos of points & authorities filed in the trial court by both sides. If the lawyer for my side made an argument, I examine her opponent’s counter-argument—and take that into account very seriously when I draft my appellate brief. If the opponent’s counter-argument is strong, I address it up front. If it’s very strong, I might even omit that particular argument, if it’s not essential to winning the appeal. (If it is essential, perhaps I shouldn’t be appealing at all.)
Trial lawyers might have occasion to think along the same lines. If you know your opponent will make a weak argument, don’t address it until after he makes it—lay a trap!
Does this sort of thing matter, i.e., does it win cases? There’s no way to tell. Winning and losing usually turns on a multitude of small decisions. The better you make them, the better your chance of winning.
And what happened to the fly? Well, here’s how the ditty ends:
Up jumped the cunning spider, and fiercely held her fast.
He dragged her up his winding stair, into his dismal den,
Within his little parlor; but she ne’er came out again!
And now, dear little children, who may this story read,
To idle, silly, flattering words, I pray you ne’er give heed;
Unto an evil counselor close heart, and ear, and eye,
And take a lesson from this tale of the Spider and the Fly.
[1] Mary Howitt, The Spider and the Fly