Survey on briefs offers companies more certainty

As an appeals specialist, David A.F. Lewis spends a lot of time trying to fathom the desires of his audience — state and federal judges.
Specifically, Lewis said, he wonders what judges want to see in appellate briefs, the documents that he spends days and weeks crafting but about which he rarely gets any judicial feedback.
So Lewis, a Cambridge, Mass., sole practitioner, crafted a survey that he sent to judges in 17 states — including Massachusetts, Rhode Island, New Hampshire, Maine, Vermont and Connecticut — and on the 1st, 2nd, 3rd, 7th and 10th circuits.
He asked the judges to assign a score between 1 and 5 — with 1 being “strongly agree” and 5 “strongly disagree” — to a series of statements about appellate briefs. He got responses from 43 percent of the judges.
“Litigation generally — and appeals more specifically — are extremely unpredictable situations for a company, so I wanted to find ways to decrease the variables,” Lewis said. “What the survey is able to show is that there are some ways of arranging your brief and presenting your appeal that played better with appellate courts in general than other things do. So the results help you manage the process with at least a little more predictability.”
Lewis discussed some of his results with New England In-House.

Does the table of contents offer an opportunity to tell the story of the case, or is it just a guide indicating where issues are discussed in the brief?
The overall results of both federal and state judges indicated no preference either way, Lewis found, but some judges approved of the table of contents being used as more than a basic guide.
Lewis said the question was inspired by a judge who told him that the table of contents can be a welcome snapshot of the arguments to come. “He said, ‘I can read a page-and-a-half, and I know where the lawyer is coming from. I know what they are claiming, and I know why I should rule in their favor.’”
Since respondents to the survey were not opposed to a more substantial table of contents, and some judges strongly approved of it, Lewis’ advice is to do it.
“Some judges liked it, some didn’t care, but no one said they hate it when the table of contents is more specific,” he said.

Should the “statement of facts” provide only the critical facts of the case?
Yes.
Judges strongly agreed that the critical, determinative facts belong in this section, Lewis found.
“One of the standard complaints that judges raise is that there are all sorts of facts in the statement of facts section that don’t need to be there — dates, people’s names, all this other stuff,” he said. “If it doesn’t have to do with the way the judge is going to decide the case, it shouldn’t be there. Stick to the critical stuff that the judge has to know.”

Should the “statement of the case” section argue the merits of the case?
“Absolutely not,” Lewis said. “The facts need to be there, but people start to get argumentative. In criminal and civil cases, you do not want to get caught in a situation where your credibility is going to be questioned because you are arguing the merits of the case in the facts [section]. The facts are the facts. Put them in and, if there is a discrepancy, highlight it. But the merits are for the argument section; the facts are for the facts section.”

Should an appellant’s opening brief state the standard of review for each issue?
Yes, Lewis said, noting that both state and federal judges said that “if you are the moving party, it needs to be there.”
Lewis found a mixed bag for respondents, however, with judges either having no preference or agreeing that it should be there.

Should the conclusion in a brief — either appellant or respondent — state precisely the remedy that the party seeks?
“No matter who you are, you have to tell them specifically what you want,” Lewis said.
That was true for appellants and respondents and true in federal and state court.

Does the “summary of argument” section provide an independent opportunity to persuade the judges?
Lewis said he is often surprised when lawyers simply repeat the headings from the argument section in the summary.
“It’s clear they haven’t put a lot of thought or effort into it, but it’s a couple pages long, judges are going to read it, so to what extent should people take advantage of it?” he asked.
It turns out that judges don’t like it when lawyers simply repeat the subject headings but are mixed when asked if it is an opportunity that lawyers aren’t taking full advantage of to explain the case.
From that, Lewis said he concludes that it won’t hurt lawyers if they spend more time trying to make their case in the summary section, and it might actually help.
“The responses were basically between ‘agree’ and ‘no preference,’” Lewis said. “Like the table of contents questions, you are not going to set anybody off by including it or by paying more attention to it. It has a lot of upside, but no down.”

Should a summary of argument section be included even if the rules do not require it?
For federal judges, this is a given: The summary is required. But for state judges, the responses indicate that it is fine to include it, but they didn’t feel strongly that it had to be there.
“If you want to include it, fine. If you don’t want to include it — providing, of course, that it’s not required — that’s also fine,” Lewis said.
‘Professional readers’
Lewis said it is important to remember that judges are an audience with likes and dislikes and write accordingly.
“In a lot of ways, judges are professional readers; that is at least one aspect of their job,” he said.
“They read highly technical stuff, but they are no different than anyone else in that they don’t want to read boring stuff,” he said. “You want to be transparent and clear and convey your claims in a very clear, understandable, persuasive manner, especially when you realize that you probably only have that judge’s attention for 20 minutes.”
Jack Dew is a former staff writer for New England In-House.