Statute of Frogs

This is wonderful.

These criminals have so much to learn…

A good brief is one that makes it easy for the judge — or, more likely, the clerk — to write the opinion you want.

This job has given me plenty of opportunity to look at good briefs and bad briefs.[*] Many of these practice tips will be about the differences between them. But to start, we need some basic standard for evaluating a brief.

The purpose of a brief is, of course, to convince the court to take some action. Judges and clerks, like everyone else, are prone to following the path of least resistance. So if one side has done all the research and can show a clear path through the jurisprudence that leads to its preferred result, that side is at an advantage. This is especially true when the issue is complicated or when the subtleties of the court’s opinion matter to your case.

[*] Unfortunately, there have been far more bad ones than good ones.

When the Court issues an order, read it. All the way through. Even* the footnotes.

I wasn’t going to start with this one, but it came up again today, so I felt compelled. I’m amazed when it becomes clear that lawyers haven’t read orders. In a really long order, I can see how your attention might wander and you might miss some nuance, but this almost always comes up with short ones that do simple things like set deadlines or tell parties what issues to address in their briefs. If something about the order is unclear, call the Court and ask. Not only does failing to comply put you in the undesirable position of asking the Court’s forgiveness, but they might say no. And then you’re just stuck. So, even if they’re not compelling (and goodness knows some of the ones I’ve drafted have been pretty dull), read them carefully.

[*] Or perhaps especially.

I realize you’ve all probably forgotten I was here at all.  But in case I’m still floating around in your feed reader somewhere, I’ve decided to make (yet) another go at this.

I’m about 3/4 of the way through my clerkship and I’ve started looking back on what I’ve learned.  To this end, I’ve created a new category to memorialize the many pieces of advice I’ve acquired over the last 18 months.  Some of them are obvious, some of them are funny, but some of them are actually useful.  Seems like a worthwhile exercise to try and collect them here.  Plus, it gives me something to write about.