APPELLATE ADVOCACY Help the Clerk and Help Your Case Keeping the Judicial

By Amanda E. Heitz on Your Side

Although appellate Apart from the litigants and attorneys themselves, there practice articles often likely is nobody who will spend more time poring over cover how to write your briefs and the record than a judicial law clerk. At a briefs and motions for minimum, the judges deciding your case will rely on their clerks’ analyses of the record and research tifying the important legal issues and facts judges, we can forget of the issues—and many will also lean on on which an opinion will rely. Making an these clerks to propose an outcome and enemy of the law clerk may not sink your that our audience also craft language for written opinions. case, but it certainly will never help you. The role of law clerks in the judicial And keeping the law clerk on your side will includes law clerks, and process has been the subject of scholarly you give you another voice in chambers research and discussion for years. See, e.g., who can remind the judge of strong facts importantly, we need Stephen L. Wasby, The World of Law Clerks: or law that help your position. Tasks, Utilization, Reliance, and Influence, Accordingly, this article intends to pro- to help them focus on 98 Marq. L. Rev. 111 (2014); Todd C. Pep- vide practical tips from former law clerk pers et al., Inside Judicial Chambers: How perspectives that can help make you a bet- our arguments, too. Federal District Court Judges Select and Use ter by giving the people spend- Their Law Clerks, 71 Alb. L. Rev. 623 (2008); ing the most time with your briefs the Todd C. Peppers, Courtiers of the Marble tools that they need to focus on your win- Palace: The Rise of the Supreme Court Law ning arguments. These tips are derived Clerk (2006). Debate over the influence that from conversations with former judicial law clerks have (or should have) on the out- law clerks across the country. come of a case, and analyses of the differing roles that law clerks play in different courts Tip 1: Remember Who We Are! and different chambers, are beyond the Especially in state and district courts, judi- scope of this article. Though their roles and cial law clerks are mainly new lawyers. influence may vary from court to court, it is Many find out whether they passed the bar safe to conclude that law clerks at least have while seated at a desk in a judge’s cham- a judge’s ear and a significant role in iden- bers. They are generally highly qualified new lawyers—frequently pulled from the top tiers of law school graduating classes ■ Amanda E. Heitz is a senior counsel with Bowman and Brooke LLP in and law review editorial boards—but they Phoenix, Arizona, where she maintains a trial and appellate practice focused are still new lawyers. on product liability defense. Before entering private practice, she spent four The law clerk is not likely a subject mat- years clerking at the Arizona Court of Appeals and Arizona Supreme Court. ter expert. (Hint: there is a good chance Ms. Heitz is a member of DRI. that your judge is not, either!) Take time

20 ■ For The Defense ■ February 2020 to provide some context for the legal issue either. Provide enough information and ex- weak claims, and one Hail Mary pass, you you are raising, particularly if it is not a planation so that someone who does not will have buried those three strong argu- subject in the required law school curric- intimately know how trials work can under- ments in seven additional arguments that ulum or on the bar exam. If there are rel- stand the point you need to make. Repeat- probably won’t win the day. Keep the court evant key principles that practitioners in ing the word “prejudice,” for example, won’t focused on what matters and what realisti- your area generally know, say so—and have much value unless you explain how im- cally stands a chance of making a difference include citations. Don’t assume that the law proper evidence, instructions, or argument for your case and client. clerk (or judge) knows which is the “lead- harmed your case or client. Another caution on this topic: don’t even ing” case or whether the applicable sub- think about trying to circumvent page limits stantive law follows a minority or majority Tip 2: Trim Your “Fat” Briefs— approach on an issue. Use your discretion and Proofread Them, Too! about how much background is necessary. None of the law clerks consulted for this arti- Reading a nuanced securities statute prop- cle reported that if a court granted a motion Take time to provide erly will likely require more background to exceed word count, they felt glad or that than understanding an argument about the the extra verbiage helped them do their jobs. some context for the legal scope of duty in a slip and fall case. Likewise, none had ever heard a judge ex- Relatedly, remember that recent law press happiness about an extra-long brief. As issue you are raising, graduates have limited—if any—experi- an advocate, think carefully whether yours ence in many everyday activities of practic- qualifies as one of the extremely rare cases particularly if it is not a ing attorneys. Discovery, for example, may that justifies a request to exceed court-im- be something the law clerk learned about posed page or word counts. subject in the required for a couple of weeks during the first year of Though a court may grant your motion law school and never thought about again. to exceed length, it doesn’t mean that law school curriculum Depending on law school course selection anyone is happy about it—least of all the or summer work experiences, the law clerk law clerk. If your request proved unwar- or on the bar exam. assigned to your case may never have seen ranted, and you have thoroughly annoyed a discovery request, let alone sat in a dep- the court with pointless, fat briefing, a osition. You don’t need to explain what a law clerk will be only too pleased to help with improper appendices, margin manipu- deposition is to cite one in your summary the judge find blistering case law to chas- lation, footnotes, or word-processing tricks. judgment motion, but if the main issue tise you in a written opinion. And there is As the U.S. District Court for the Northern that you will raise with the court relates to plenty of it out there. See, e.g., Mobile Shel- District of Illinois put it, “Resort to these discovery practice conventions, additional ter Sys. USA, Inc. v. Grate Pallet Solutions, tactics is embarrassing[.]” Malec v. Sanford, background could be helpful. LLC, 845 F.Supp.2d 1241, 1253 (M.D. Fla. 191 F.R.D. 581, 586 (N.D. Ill. 2000). See also Jurisdiction-specific procedural rules 2012) (“The Court’s page limit require- Northbrook Digital, LLC v. Vendio Servs. are another area of potential limited know- ment is not imposed to burden the parties. Inc., 625 F. Supp. 2d 729, 733–34 (D. Minn. ledge. There is no guarantee that the law It is intended to focus the parties’ attention 2008) (criticizing a party for “violat[ing] clerk attended law school or even sat for on the most pressing matters and winnow the spirit, if not the letter” of word limit by the bar in the jurisdiction in which he or the issues placed before the Court, thereby “manipulat[ing] the word-counting feature she is now clerking. But even if the law clerk conserving judicial resources.”); State v. of its word-processing program through im- attended school in your jurisdiction and Johnson, 447 P.3d 783, 828–29 (Ariz. 2019) proper hyphenation” and disrespectfully re- intends to practice there, it still does not (noting that the defendant was “entitled to ferring to the magistrate judge by her last guarantee that the clerk will know the local a meaningful opportunity to be heard, but name only). You will get caught. People rules well. Many law schools do not require that does not mean that he may decline to working in the courts stare at correctly for- state-specific procedure courses, and a law comply with this Court’s requirements and matted documents all day long; it’s not hard clerk’s knowledge may be based primarily orders or that he is excused from the obli- for them to pick out a non-conforming one. on a civil procedure textbook geared to a gation to edit his work”). Finally, proofreading and editing go hand national audience. When appropriate, con- As one former clerk put it, “the opera- in hand. While you edit, make sure you sider whether comprehensively discussing tive part of ‘briefing’ is ‘brief.’” Aside from proofread your work, too. Spellcheck and a state rule of civil procedure—particu- potentially irritating law clerks and judges grammar check will not catch everything. larly if it differs significantly from a federal with overlength briefs, remember the prac- Though law clerks may get a chuckle when rule—would be useful. tical risk that fat briefing could also dilute you accidentally refer to “trail courts,” “the Finally, don’t assume that anyone read- your arguments. In a standard-length fil- farmers of the Constitution,” “chile abuse,” ing an appellate brief has tried a case. Appel- ing, the reader will likely remember the and “doe snot,” such errors distract from late law clerks have not usually seen a trial, third of three strong arguments. But if you your arguments and paint you as careless. much less participated in one. Occasionally, file an oversized document containing three Read your work out loud and ask someone an appellate judge will not have tried a case, strong arguments, four ok points, two fairly else to read it out loud, too.

For The Defense ■ February 2020 ■ 21 APPELLATE ADVOCACY

Bottom line: edit your briefs. If you can’t on appeal. Indeed, the detail was not even published opinion. Anticipate and cor- do it yourself, find someone who can. There mentioned again after the fact section. Wit- rect potential misconceptions about your are gleeful slashers in almost every law ness identification was an issue at trial, but client’s business—for example, the rela- office who will take pleasure in helping you it wasn’t raised on appeal. The appellate tionships between franchisors and fran- trim the fat. attorney had failed to tell the right story for chisees, or the roles of various subsidiary her appellate arguments. Instead, she dis- entities. The law clerks drafting an opinion Tip 3: Craft Helpful Fact Sections tracted the law clerk from the point of her or disposition will appreciate the clarity, Legal writing and advocacy experts will re- brief and created the impression that noth- and your client will appreciate not having mind you never to underestimate the power ing in her brief would be particularly well to pay for motion practice to correct factual reasoned or carefully analyzed. details in the decision. Although not usually as egregious as this example, including superfluous facts Tip 4: Cite Frequently, Cite If the law clerk isn’t is a common appellate mistake. Law clerks Thoroughly, and Cite Accurately and judges appreciate background, but Briefs containing facts without record cites spending all his or her time they do not usually require a blow-by-blow and propositions of law without authority of every day’s trial testimony. Similarly, are among judicial law clerks’ top pet peeves. fact-checking the record, he a detailed chronology of the event giving Judges frequently note in written opinions rise to the case are often distracting. Con- that the court will not search the record or or she will have more time sider whether details such as the day of the for authority to support a party’s position. week, time of day, distances, or exact time But that statement is often only partially to analyze the substantive between events matter for your appellate true. Courts have no obligation to search issue. If they don’t, general words such the record for the facts or to hunt for rel- issues and your argument. as “later,” “nearby,” and “then” are great evant case law, but frequently they do be- ways to advance the story. Remember who cause they want to do a good job and reach your law clerk audience is: usually, they the right conclusions. Independent research of telling a good story. And there are plenty earned top grades and spots on law reviews and review of the record is commonplace. of great resources available to help you by being detail oriented. Give them your Generally, the people doing this inde- hone that skill. See, e.g., Philip N. Meyer, important case details and the facts they pendent research and review are the law Storytelling for Lawyers (2014). Remem- need to follow your arguments. Don’t dis- clerks. It should be obvious, then, that to ber, however, to tell the story that propels tract them with details that don’t matter. keep the law clerk on your side, you should the argument you are making right now. Also, fact sections that include unverifi- do everything you can to make this job eas- There may be several important stories in able “facts” are unhelpful and counterpro- ier. Don’t make a law clerk hunt for a single your case, and the important stories may ductive. If the judge called counsel to the quote in a trial transcript. If you say, “seven change with the subject of a motion. They bench during trial and warned your oppo- witnesses testified…,” provide a record cite likewise might change radically on appeal. nent about inappropriate arguments, that for each time this testimony occurs. Sim- An anecdote from a former state appel- might be a great fact to support your trial ilarly, if you refer to a fact on page 2 of a late clerk consulted for this piece under- misconduct argument on appeal. But if brief, and then again refer to it on page 25, scores the necessity of telling the right story your trial transcript says, “bench conference it is helpful to provide a record cite in each at the right time. The clerk was assigned a held” and nothing more, it is not a fact for location. If the law clerk isn’t spending all new criminal appeal and began reading the your appellate brief. A cardinal rule of appel- his or her time fact-checking the record, opening brief. She glanced at the issues pre- late practice is that if it is not in the record, he or she will have more time to analyze sented and moved on to the fact section to it did not happen. Referring to something the substantive issues and your argument. find out what the case was about. The fact not in the record threatens your credibility. Additionally, supplying thorough cita- section was somewhat disjointed because Finally, though brevity is important and tions to authority and the record are impor- the authoring attorney had elected to pres- excessive detail is distracting, do be wary of tant. You don’t have to be a master of the ent the facts by summarizing the trial taking brevity too far. Be thoughtful about Bluebook, but you should make your cita- testimony of several witnesses instead of providing a robust enough background to tions easy to follow. “Jones, at 125” is not creating a narrative. Each paragraph in the set up your arguments and ensure a factu- a correct short cite because it is not help- fact section ended by emphasizing that the ally correct written disposition from the ful. The reader must glance back to find witness did not recall whether a particu- court. Provide concise and accurate pro- the previous time you cited Jones to deter- lar man was wearing pants. This repeated cedural backgrounds where appropriate. mine the reporter and locate the case. Also, detail seemed important, and the clerk Identify and define terms of art that are be cautious with Lexis or Westlaw citations made a note of it. After she finished read- relevant to the subject matter. If your cli- for unpublished cases or opinions that are ing the entire brief, however, she was sur- ent provides a product or service, explain too new to be in a reporter. A Lexis cite is prised to learn that whether the man had that product or service in a way that your useless to a court that has only a Westlaw worn pants was not relevant to any issue client would be comfortable seeing in a subscription. Review court rules and deter-

22 ■ For The Defense ■ February 2020 mine how it wants citations to unpublished able and refused to cooperate, though, as “shrill,” particularly if it was made by a or not-yet-reported decisions; if permissi- the defendant assured the court, it had female attorney or party. ble, consider attaching a courtesy copy as attempted to meet and confer in good You should also watch out for sharply an exhibit or appendix. faith. When the other party responded, worded language from case law. Some- Law clerks will thank you if you do it attached documents showing that the times judges have reason to chastise a everything you can to make your citation meet and confer request was an after- litigant or their counsel in written disposi- as specific as possible. If permissible, use hours email demanding a substantive tions. Sometimes they aggressively poke at paragraph cites, not just page cites, for case response by noon the next day. It became their colleagues’ opinions in dissents and law, and cite transcripts by page and line. obvious who the truly unreasonable party concurrences. When the language is color- Where allowed, use technology to make was, and this perception lingered through ful, it is memorable and a bit fun—just do your cites direct. If you are before a court discovery. a quick internet search for “bench slaps” that permits embedded hyperlinks, take Courts understand that attorneys are the time include them. Your reader can and need to present the case in focus on your arguments when he or she a way that is favorable to their clients. But can reference your authority and record this can be done without overstating the cites with a single click. strength of the authority or misrepresent- If the law is not “clearly” Last, be accurate and honest with your ing critical facts. If the law is not “clearly” record and case cites. Law clerks really do on your side—or reasonable minds could on your side—or read what you cite. If the witness said, “It differ whether it is—don’t say that it is un- didn’t happen that way. I’m not going to questionable. Argue that cases supporting reasonable minds could tell you that Bob ran the red light,” you your desired outcome are applicable and absolutely will get caught if your brief says better reasoned. Point out how cases that differ whether it is—don’t that the witness testified, “Bob ran the red go against you are not factually applicable light.” It should be obvious that outright or how their reasoning is faulty. You lose say that it is unquestionable. lies and misrepresentation of the record no credibility with the judge or law clerks are inappropriate. But you should also by being honest about the law; spend your Argue that cases make sure that you provide a court with time explaining why the court should take a necessary information about the weight of particular action rather than trying to pre- supporting your desired authority that you cite. Don’t cite a dissent tend that there is no alternate viewpoint. without conspicuously labeling it as such; outcome are applicable include subsequent history if the case has Tip 6: Ditch the Playground Antics been abrogated in the jurisdiction that pro- Few practitioners need to be reminded and better reasoned. duced it; and never cite a vacated opinion as not to insult opposing counsel, oppos- authority. Law clerks check all these things, ing parties, or judges in written motions and if you appear to be hiding something, overtly. Slightly more need to be reminded if you need proof—but remember, you are you will lose credibility. that they should assume that all micro- a litigant trying to persuade a court. You phones are “hot” at all times and refrain are not the judge. Just because language Tip 5: Avoid Unwarranted Bravado from making disparaging remarks inside is contained in a citable opinion does not A former Ninth Circuit clerk reported a courthouse even if court is not in session. mean that quoting it will help your argu- that her least favorite word in any brief is The more common problem is when ment. Unless the language you quote is on “clearly.” If the issue or the authority is so attorneys use fighting words that they do precisely the matter at issue and substan- very clear, why is the case in front of the not fully appreciate are fighting words. Mis- tively advances your position, you would Ninth Circuit? Whenever checking the use of the word “disingenuous” is a com- do well to leave your “applesauce” out of case law proved that the issue described mon offense. Some attorneys use the word it and stick to compelling legal analysis. as “clear” was anything less than clear, it “disingenuous” as a synonym for “inac- King v. Burwell, 135 S. Ct. 2480, 2501 (2015) caused her to doubt every argument the curate” or “incorrect.” That is not what it (describing majority argument as “Pure litigant made. means. “Disingenuous” is a fancy way of applesauce.”) (Scalia, J., dissenting). Other clerks reported similar problems calling someone a liar. Don’t use it unless with representations of factual records. you mean it. And even then, reconsider. Tip 7: Don’t Forget the Analysis One former district court clerk noted that As a rule of thumb, double check your Analysis is the hard work of legal writing, sometimes it seemed as if the lawyers adjectives. Using words such as “crafty” or yet some attorneys simply fail to perform didn’t realize that the other party would “sly” to describe your opponents or their this critical task in their written motions get to respond to a motion—with exhibits. arguments will not help your case. Also, and briefs. As an appellate clerk, my least There, a defendant filed an over-the-top watch out for words with loaded mean- favorite brief format was what I called discovery motion, filled with invective, ings that evoke ethnic or gender biases. a “fact-fact-fact-law-law-law, therefore I claiming that its opponent was unreason- For example, do not refer to an argument win” brief. The attorney presented facts,

For The Defense ■ February 2020 ■ 23 APPELLATE ADVOCACY cited case law, and then demanded relief Make sure that you know the rules that Or worse, that you do not care about fol- without explaining how the law applied to create procedural prerequisites for obtain- lowing the rules. those facts. Unless the case you cite con- ing relief. Rule 37 of the Federal Rules of trols in your jurisdiction and governs the Civil Procedure requires a “meet and con- Tip 9: Tell the Court Exactly What You exact issue in front of the court, it is usually fer” before filing a motion to compel. Some Want and Why You Should Get It not enough to cite a case’s holding without state and district court local rules have Otherwise compelling briefs that fail to tell applying it to your facts. Similarly, stat- extended this idea to other motion prac- the court precisely the relief a party wants ing that a case “is directly on point,” then tice. In some courts, there is a meet and and why it is the correct remedy are a peren- reciting the case’s facts or stating its hold- confer requirement for dispositive motions nial annoyance to law clerks. Don’t just tell ing, does not qualify as analysis unless you or motions in limine as well as discov- the court that you’re right. Tell the court spe- explain it in the context of your case. ery motions. You don’t want to lose your cifically what to do about it and why. Clerks expressed annoyance with other motion because you failed to meet and Sometimes telling the court precisely analytical shortcuts, too. One noted that confer. what relief you seek can be as simple as overuse of block quotations was a good sign A misunderstanding about citable identifying the specific claims or para- that a brief lacked any serious analytical authority poses problems for many lit- graphs of a complaint on which you seek strength. If your brief is nothing but quota- igants. With the broad availability of relief. Tell the court in your conclusion, for tions from case law, where is the argument? unpublished dispositions, many courts example, “All claims must be dismissed Another lamented the use of font as a sub- have created rules for when and how an under Rule 12(b)(6), and claims 1 and 3 stitute for analysis. An occasional bold or unpublished opinion may be cited. Some should be dismissed with prejudice because italic word can be good to draw attention courts permit citations to unpublished amendment would be futile.” In your appel- to a critical word. But briefing riddled with authority as if they were published. Other late brief, tell the court whether it should re- font changes to denote emphasis no longer courts create more byzantine rules, permit- mand for a new trial (and on which issues), really emphasizes anything and takes away ting citations to cases issued after a specific or whether it should remand with instruc- from the substantive analysis. date only and cited solely for certain pur- tions to enter judgment in your client’s fa- And do not rely on the law clerk to poses. If you do not learn the rules gov- vor. And end your motion for summary do your analysis for you. Similar to fail- erning when or why your jurisdiction will judgment by telling a court on which counts ing to provide accurate citations to the allow you to cite unpublished cases, you in a complaint it should enter judgment. record or substantive law, it’s lazy and can end up wasting your time and oppor- Other times, identifying the relief re- won’t make you any friends with the court tunity arguing that the court should fol- quested is a valuable, but overlooked, por- or clerks. Moreover, you may not like the low a case that you were not allowed to cite. tion of legal analysis. For example, in the result of delegating your analysis to the law Also identify which appellate courts’ appellate context, not all findings of trial clerk. If the clerk disagrees that the case opinions are binding. According to the error will mandate reversal for a new trial. you blithely proclaimed (without analy- clerks consulted for this article, a surpris- Attorneys who identify a legal error in the sis) “directly on point” is, in fact, on point, ing number of practitioners forget that fed- admission of evidence or a instruction you have provided no reason why the court eral district and circuit court decisions are but who fail to explain why the error war- should follow it. Without a rationale from not binding on state courts on matters of rants a new trial have done only half the you, you have neutralized a strong author- state law. Federalism issues aside, other job. Cite to and argue from the correct legal ity that could have favored your client. The practitioners become confused when inter- standard. When is this kind of error revers- cases you cite may seem obviously appli- mediate state appellate courts are divided ible error? What are the rules about harm- cable to you after being immersed in your into divisions or districts. Learn whether less error? Did someone fail to object at trial case for months or years. Law clerks and an appellate court’s decision is binding and now must prove fundamental error? the judges for whom they work may not see statewide or merely over one geographic that obvious connection and you may need region. For example, the Arizona Court of Tip 10: Hire Them! to explain it to them. Appeals is considered a single court sitting If you really want to get a law clerk on in two divisions, and every opinion issued your side, hire one! Former law clerks are Tip 8: Learn the Rules is binding on trial courts statewide, regard- a terrific investment in the future of your and Follow Them less of which division issues it. Neverthe- firm. They’ve spent a year or more learning Failing to follow court rules creates a head- less, some lawyers erroneously claim that from judges how to write for judges: that’s ache for judges, law clerks, and court staff. a case from Division 2, which sits in Tuc- on-the-job training that didn’t cost you a Nearly every aspect of written advocacy is son, is not binding on trial court in Phoenix dime. They know the ins and outs of how governed by rules. Learn the rules for the (which is overseen by Division 1). the court works—the things that are not court in which you will appear and abide by Not every rule infraction will substan- included in the rules of procedure. And them. Failing to do so could have adverse tively hurt your case in terms of a denied every year, there are lots of them looking consequences for your clients, and at a motion or rejected briefing. But repeated for jobs when their clerkships end. As you minimum, it will make you appear inex- errors signal to the court and the law clerks look to expand your firm, consider hiring perienced and unprofessional. that you do not know what you are doing. a judicial law clerk.

24 ■ For The Defense ■ February 2020