7 - Voice For The Defense Online

N
ot too long ago I had the "pleasure"
of writing an opinion in a case
wherein the appellant asserted
over 30 points of error in hi brief. Some
time had to pass between the date I
completed that opinion and the date I
began drafting this article. Had I not so
delayed, the tone of it would have been quite
different (i.e., less judicious). It is not that I
dislike working; for if I did, I would not be
an appellate judge.I Rather, what frustrates
me are those who endeavor to waste my
time, and that is what happened when I
began working on the aforementioned
appeal. Seeing 30 plus points of error (or
issues as they are now called) made me think
of two things: either the trial judge lacked
all concept of the law or appellant's counsel
misunderstood his task.
Admittedly, trial judges commit error, as
do intermediate appellate judges and those
who grade the papers of intermediate
appellate judges. But, 1 have yet to encounter
one that commits over 30 harmful
mistakes in one case. Nor did I encounter
one in the case alluded to above. Instead,
counsel fell prey to a type of thinking in
which many who argue before appellate
courts indulge. This thinking is comprised
of numerous misconceptions. I will share
some of the "bigger" ones with you in hope
that you too will not succumb to them.
First and foremost, more is not always
better. Seldom is a judge swayed by the sheer
number of issues which an ingenious counsel
can contrive. Why? Think about it. If you
have 20 topics to address but only a
finite time within which to do it, do you
think each will be analyzed as thoroughly
as would one or two issues in the same time?
For those afraid to answer, let me do it for
you. The answer is "no". This does not mean
that a judge is uninterested in your case, only
that he has many, many other "interesting"
cases whichneed attention. Remember that
the greater the number of cases asserted, the
greater the chance that a legitimate issue
will be under-analyzed or missed. It only
takes one good point of error to win, anyway.
By Brian Quinn, Justice 1
Second, the use of legalese or "six-bit"
college words may help convince your
cltent that you are worth the hourly fee
being charged, but it does not help win his
case. Indeed, it actually interferes In your
communication with the court when the
judge i constantly shifting hrs attention
from the brief to either a Webstm's, Black's
have 20
address
but on& a finite
time within
which to do it, do
~ othink u each
will be analgzed
would one or two
issues in the
same t
Law, or a Latin-to-English dictionary. I
know you received a high dollar education.
Instead of trying to impress me with some
high-brow vocabulary, use your education
to figure out how to simplify what you are
saymg with plain language. After all, the
simpler you make it, the easier it is for me
to understand.
Third, history is great when it is in a
history book, but briefs are not history
books. Similarly, pages of facts are great
when you are reading a novel, but briefs are
not novels. Instead, they are opportunities
to tell the appellate court what your
complaint is, why it is legitimate, and why
it matters in the grand scheme of things.
So, do just that. Tell us enough for us to
know what the problem is. Cite some
supporting authorit' And, describe how the
mistake unduly influenced the outcome of
the trial. It is seldom necessary to refer to
Blackstone's musings on contracts just
because your case involves a coerced
confession. All the fluff may be great
reading, but is distracts from your argument.
Keep your argument focused by mentioning
only the facts relevant to your issue.
Conversely, avoid being overly "brief and
concise." There have been occasions, for
instance, where the appellant asserted that
the evidence was insufficient to support the
verdict, and in developing the proposition,
he merely stated that "the evidence was
insufficient to support the verdict." He may
have been correct, but he lost. Why!
Because it was his job to explain why the
evidence that was presented to the fact
finder fell short. Simply, if the dispute
involves the admissibility of some bit of
evidence, for example, the appellant must
do more than merely conclude that the
evidence was inadmissible and leave us to
determine why. Explain the who, what,
where, when, why, and how of your
argument, but in as few words as possible.
Do not expect the court to do it for you.
In effect, you are being asked to strike a
balance between too much and too little.
Including needless matter poses the risk
of distracting the court while being
conclusory may result in our holding the
argument waived. Exercise your judgment
with appropriate regard for the possible
consequences when striking the balance.
Fourth, while omnipotence would be a
fme quality to have, no human bas it, not
even a judge. In lacking that quality, we do
not always know whether a court has
addressed your argument bef6re. Help us out
by citing authority. It is much easier to
MAY 1999 VOICE 21