Preparing a Hall of Fame Appellate Brief

AMC 2016 Track A – Session 7

Melissa L. Greipp, Marquette University Law School, Milwaukee Ben Letendre, Cross, Jenks, Mercer & Maffei, Baraboo Jacob J. Wittwer, Wisconsin Department of Justice, Madison

About the Presenters...

Melissa L. Greipp is an Associate Professor of Legal Writing at Marquette University Law School. Professor Greipp is a graduate of Wellesley College and Marquette Law School. Prior to joining the faculty, she was a civil litigator in Milwaukee. Professor Greipp was also a law clerk to Justice Patrick Crooks. She has authored articles and materials for the Wisconsin Lawyer and the State Bar and is a co-author of The Moot Court Advisors’ Handbook. She is the faculty advisor of Marquette Law School’s moot court program. She engages in community outreach through Marquette’s Summer Youth Institute.

Benoit “Ben” Letendre is a partner with the law firm of Cross Jenks Mercer & Maffei in Baraboo, WI. He has been with the firm since graduating from law school in 2010. Ben’s work focuses on small business litigation, municipal law and veterans law issues. Over the course of his relatively short career, he has assisted with numerous appeals. Ben went to St. Olaf College, and attended law school at the University of Wisconsin. Prior to attending law school, Ben was an officer in the United States Marine Corps and supported combat operations in Afghanistan and Iraq as a pilot and forward air controller. He lives in Baraboo with his wife Norah, a Baraboo native, and their three young children. When not practicing law, Ben enjoys downhill and cross country skiing, open water swimming and trail running.

Jacob Wittwer is an Assistant Attorney General in the Criminal Appeals Unit of the Wisconsin Department of Justice. He regularly files briefs in the Wisconsin Supreme Court and Court of Appeals, the federal district courts in Wisconsin, and the Seventh Circuit Court of Appeals. Mr. Wittwer received his undergraduate and law degrees from the University of Wisconsin at Madison. He clerked for Justice Louis B. Butler, Jr. of the Wisconsin Supreme Court, and Judges Charles P. Dykman and Paul B. Higginbotham of the Wisconsin Court of Appeals. Before law school, he worked as an aide in the Wisconsin State Legislature. Mr. Wittwer has been active in the Appellate Practice Section of the Wisconsin State Bar since 2009, and is presently chair of the section. 6/9/2016

PREPARING A HALL OF FAME BRIEF

MELISSA L. GREIPP, MARQUETTE LAW SCHOOL; BEN LETENDRE, CROSS JENKS MERCER & MAFFEI; AND JACOB J. WITTWER, WISCONSIN DEPARTMENT OF JUSTICE JUNE 17, 2016

Chief Justice Roberts on writing JGR: At every stage, the more careful they are with their language, I think, the better job they’re going to do in capturing in those words exactly what they want the law to do; in persuading a judge how to interpret it; and as a judge, in giving a good, clear explanation of what the law is. BAG: Do you think the profession could do better on that score? JGR: Yes. I think we all can do better. We read hundreds, thousands, thousands of briefs in the course of a year at the Supreme Court, and some are more effective than others. And it’s just a different experience when you pick up a well written brief: you kind of get a little bit swept along with the argument, and you can deal with it more clearly, rather than trying to hack through . . . it’s almost like hacking through a jungle with a machete to try to get to the point. You expend all your energy trying to figure out what the argument is, as opposed to putting your arms around it and seeing if it works. Bryan Garner’s interview of Chief Justice John Roberts (at 5) in Scribes.

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1. Develop context before detail. Use roadmap paragraphs under every heading to orient a reader. Place meaningful headings in a position of emphasis.

Heading and roadmap: example B. Although Defendant Had Been Drinking at the Time of His Arrest, That Conduct Was Not Sufficient to Support Revocation of the Defendant’s Supervision. The Defendant was found to have violated a second condition his supervised release which prohibited from “excessive use of alcohol.” At the time of his arrest for the firearms violation, Defendant smelled of liquor, had bloodshot eyes, and had a blood alcohol concentration of .23%, which the District Court said was “twice the legal limit for intoxication”. Of course, the Court was incorrect about that. There is no “legal limit” for intoxication unless one is operating a motor vehicle. Given the fact that LeBlanc was inside his friend’s house at the time of his arrest and was not driving a motor vehicle, it is not clear what relevance the prima facie blood alcohol concentration for driving while intoxicated has to do with this case. Dean Howard Eisenberg, Appellant’s brief, U.S. v. LeBlanc (citations omitted).

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Headings: example: Alaska v. EPA I. THE EPA HAS NO AUTHORITY UNDER THE CAA TO INVALIDATE A STATE BACT DETERMINATION THAT IS BASED ON CONSIDERATION OF THE STATUTORY FACTORS. A. The Plain Language Of The CAA Makes Clear That BACT Is A Determination To Be Made By The States On A “Case‐By‐Case Basis”. B. The Legislative History Of The CAA Confirms That BACT Is “Strictly A State And Local Decision”. C. The EPA’s Recourse In This Case Was Not To Unilaterally Overturn The State’s BACT Determination, But To Challenge It Through The Available Review Process. II. EVEN IF THE EPA MAY INVALIDATE A STATE BACT DETERMINATION IN SOME CASES, IT HAD NO AUTHORITY TO DO SO HERE. Chief Justice John Roberts’ brief in Alaska v. EPA.

Headings, example: Just v. Marinette Co. I. THE CONSERVANCY DISTRICT‐WETLANDS PROVISIONS OF THE MARINTETTE COUNTY SHORELAND ZONING ORDINANCE NO. 24 SEVERELY LIMIT THE USE AND DEPRECIATE THE VALUE OF APPELLANTS’ LAND TO SUCH AN EXTENT AS TO REQUIRE THE PAYMENT OF JUST COMPENSATION UNDER SECTION 13, ARTICLE I, WISCONSIN CONSTITUTION AND AMENDMENT NO. 14 OF THE UNITED STATES CONSTITUTION. A. The interests of the appellants in the use and enjoyment of their lands are constitutionally protected against a taking without compensation. ‐‐Fair Market Value is protected ‐‐Loss of Use is protected

Wayne R. Peterson, Attorney for the Appellants, Ronald and Kathryn Just, Just v. Marinette Co., Wisconsin Supreme Court Brief, August 1970

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Headings, example: Just v. Marinette Co. B. The ownership interests identical to appellants’ have been constitutionally protected against a taking. 1. Ordinance deprives the of productive use of land. 2. Ordinance depreciates the value of the land. 3. The cost of Shoreland Zoning should be publicly borne. 4. The purposes of the Ordinance and the permitted uses of Section 3.41 are public or quasi‐public in nature. 5. The public purpose does not justify the means.

Wayne R. Peterson, Attorney for the Appellants, Ronald and Kathryn Just, Just v. Marinette Co., Wisconsin Supreme Court Brief, August 1970

Develop context before detail. Drive your argument with probative thesis sentences.

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Probative thesis sentences: examples 1. When the enjoyment of property is regulated for public purpose to such an extent that the landowner is unreasonably deprived of the beneficial use of his property, he is entitled to receive compensation, as his property has been constructively taken. 2. An examination of Wisconsin Statutes Section 59.971(6) reveals a legislative intent to apply ordinances similar to Marinette County’s on a statewide basis. 3. To permit these oppressive restrictions of a conservancy district to stand in the name of zoning would be tantamount to acquiring a right of way through Blackacre’s field merely by zoning it “for highway purposes only”, and allowing him to farm it only upon his obtaining a permit. 4. Despite the prime public purpose, despite the nature of the area, the ordinance was struck down. Wayne R. Peterson, Attorney for the Appellants, Ronald and Kathryn Just, Just v. Marinette Co., Wisconsin Supreme Court Brief, August 1970

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Probative thesis sentences: examples 1. The procedural vehicle that Bembenek used to bring her case back to court ten years after her 1992 no contest plea is the postconviction DNA testing statute, Wis. Stat. § 974.07. 2. But while Bembenek’s brief discusses the DNA results, most of that brief addresses issues that have nothing to do with the DNA evidence. 3. For a variety of reasons, not the least of which is Bembenek’s express agreement in 1992 to forgo collateral challenges to her conviction, those other issues are not properly before this court. 4. This court, like the circuit court, should focus its analysis on the question of whether the DNA test results prove Bembenek’s innocence or otherwise demonstrate an entitlement to relief. Attorney General Peggy A. Lautenschlager and Assistant Attorney General Jeffrey J. Kassel, Plaintiff‐ Respondent’s Brief in Wisconsin Court of Appeals, State v. Lawrencia Ann Bembenek, August 2005.

2. State the rule, or advocate for a rule. Set forth the rule, and the outcome you’re seeking; if there is no clear rule, advocate for one.

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Applying a clear rule to your facts: example Waivers of appellate rights in plea agreements are widely recognized as valid and enforceable. See United States v. Bownes, 405 F.3d 634, 636 (7th Cir. 2005) (collecting cases). Bembenek received a substantial benefit from her plea agreement, a reduction of the charge from first‐degree murder to second‐ degree murder that resulted in her release from imprisonment following her resentencing and a discharge from custody in 2002 (216:57). In exchange for that substantial benefit, Bembenek agreed to forgo both direct and collateral challenges to her convictions. This court should hold her to that agreement. Attorney General Peggy A. Lautensclager and Assistant Attorney General Jeffrey J. Kassel, Plaintiff‐Respondent’s Brief in Wisconsin Court of Appeals, State v. Lawrencia Ann Bembenek, August 2005.

Rule advocacy: example The Ninth Circuit held that the CAA gives the EPA the “ultimate authority” to decide what constitutes BACT for a particular source. In its view, that conclusion is “compel[led]” by the plain language and legislative history of the Act. As we explain below, however, the plain language and legislative history of the CAA make clear that BACT is a determination to be made by the States, and the EPA has absolutely no authority to second‐guess a State’s BACT determination that— like Alaska’s here—is based on consideration of the statutory factors. Because the EPA thus had no authority to invalidate Alaska’s permit decision in this case, its action is “plainly contrary to law,” and the Ninth Circuit decision below “cannot stand.” Chief Justice John Roberts’ brief (at 21) in Alaska v. EPA (citations omitted).

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Rule advocacy: Five types of arguments

◦ 1. Text: interpreting enacted law through plain meaning; canons of construction; and intra‐textual arguments ◦ 2. Precedent: support the rule with reasoning from precedent cases. ◦ 3. Intent: interpret intent of those who wrote the text, e.g. by text of the law, drafting/legislative history, official comments, etc. ◦ 4. Policy: consequentialist arguments about underlying purpose of the law ◦ 5. Tradition: e.g. industry customs in commercial transaction law; social traditions in allocation of liability for torts

Wilson Huhn, The Five Types of Legal Argument (3d ed. 2014).

Rule advocacy: Use analogies. Employ analogies that advance your rule: compare facts and reasoning from precedent to facts from your case. How does the reasoning advance your argument? Tell the reader what is significant about this analogy to your overall argument. http://findlawimages.com/efile/supreme/briefs/02‐658/02‐ 658.mer.pet.pdf Chief Justice John Roberts’ brief (at 22) in Alaska v. EPA.

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3. Lead with your favorable arguments. Your best arguments must come first. The reader is most ready to pay attention at the beginning of an argument, a paragraph, or a sentence. Lead with the cases and other authorities that support your position. http://findlawimages.com/efile/supreme/briefs/02‐658/02‐ 658.mer.pet.pdf Chief Justice John Roberts’ brief (at 17‐19) in Alaska v. EPA.

4. Pull apart counterarguments. “You should first present your own argument, and then meet the opposing argument by direct refutation or by pulling them to pieces in advance.” Aristotle, Rhetoric at 235‐36, as quoted in Michael H. Frost, Introduction to Classical Legal Rhetoric, 52 (2005). Sandwich negative authorities and counterarguments in the middle of a paragraph to diminish their importance.

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Sandwiching: example The evidence of Heather’s prior false claim of sexual assault was particularly probative because it established her motivation to lie about sexual matters. No other evidence presented at trial established this important fact. The Attorney General claims that Petitioner was “free . . . to argue” that Heather’s allegations against him were fabricated in order to gain her mother’s attention. But without the evidence that Heather had previously used assertions of sexual conduct as a way of gaining her mother’s attention, there would be no evidentiary foundation for such argument. In Wisconsin, as everywhere else, “arguments are limited to fair comment on the facts of the record . . . [and] . . . arguing facts not found in the evidence is inappropriate.” Without the factual basis for such an argument, it would have been improper. Dean Howard Eisenberg, reply brief, Redmond v. Kingston (citations omitted).

Direct Refutation: example 1. Yoder Brief: Misconceptions By the Court Below. The courts below held the application of the Compulsory School Attendance Law to the Appellants to be a “reasonable and constitutional exercise of the governmental function of the State.” In defense of this conclusion, the Circuit Court’s opinion sets forth the following points: A. That the statute does not compel Amish parents to send their children to public schools the Amish are legally free to create their own parochial high schools just as other religious groups have done. [T]his conclusion represents a fundamental misunderstanding of Amish religious beliefs. . . . [T]he Amish are not religiously free to send their children to any high school, including an Amish parochial high school. The fact that other religious groups have chosen to establish and maintain their own parochial high schools only means that high schooling is not offensive to their particular religions. William B. Ball, Joseph G. Skelly, Thomas C. Eckerle, Attorneys for Appellants Jonas Yoder, Adin Yutzy, and Wallace Miller, State v. Yoder, Wisconsin Supreme Court Brief, August 1970 (citations omitted)

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5. Use narrative to develop your side’s story. Storytelling techniques keep a reader’s interest.

Chief Justice Roberts on storytelling BAG: Then you’d spend a lot of time on the statement of facts in a brief. What are the characteristics of a first‐rate statement of facts? JGR: It’s got to be a good story. Every lawsuit is a story. I don’t care if it’s about a dry contract interpretation; you’ve got two people who want to accomplish something, and they’re coming together —that’s a story. And you’ve got to tell a good story. Believe it or not, no matter how dry it is, something’s going on that got you to this point, and you want it to be a little bit of a page‐turner, to have some sense of drama, some building up to the legal arguments. I also think —again, it varies on your forum — but certainly here at the Supreme Court and in the courts of appeals, you’re looking for a couple of hooks in the facts that hopefully are going to be repeated in one form or another later on in the legal argument but also are going to catch somebody’s interest. It may not have that much to do with the substantive legal arguments, but you want it to catch their eyes. Bryan Garner’s interview of Chief Justice John Roberts (at 16) in Scribes.

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Reader interest: example The Red Dog Mine. For generations, Inupiat Eskimos hunting and fishing in the DeLong Mountains in Northwest Alaska had been aware of orange‐ and red‐stained creekbeds in which fish could not survive. In the 1960s, a bush pilot and part‐time prospector by the name of Bob Baker noticed striking discolorations in the hills and creekbeds of a wide valley in the western DeLongs. Unable to land his plane on the rocky tundra to investigate, Baker alerted the U.S. Geological Survey. Exploration of the area eventually led to the discovery of a wealth of zinc and lead deposits. Although Baker died before the significance of his observations became known, his faithful traveling companion—an Irish Setter who often flew shotgun—was immortalized by a geologist who dubbed the creek Baker had spotted “Red Dog” Creek. Mark Skok, Alaska’s Red Dog Mine: Beating the Odds, Minerals Today, at 8 (June 1991). Chief Justice John Roberts’ brief (statement of the case) in Alaska v. EPA. http://findlawimages.com/efile/supreme/briefs/02‐658/02‐658.mer.pet.pdf

5. Use narrative to develop your side’s story. Narrative motivates a reader. Narrative also explains an actor’s behavior.

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Motivation: example 2.1 Julie Jensen’s actions the seventy‐two worried about being labeled “crazy.” She also hours before she died. worried about losing her kids and her marriage, but denied any domestic violence or fear of Two days before her death, Julie Jensen visited Mark. Attuned to domestic‐violence issues, her family physician, Dr. Richard Borman. Borman saw no such signs. Given Julie’s Months earlier she had seen Borman for symptoms, Borman prescribed Paxil. As the depression, but her condition had deteriorated. state’s expert explained, when depressed She was “highly upset,” in tears, and “seemed persons begin taking Paxil, it can have the to be depressed and distraught and almost unintended effect of giving them the energy to frantic.” She reported being “miserable” and kill themselves, when they lacked the energy had lost weight. Borman was “very concerned.” before. Julie described her family’s history of Craig Albee and Joe Bugni, Petitioner‐Appellee depression, including her concern that she was brief, Jensen v. Clements (cites omitted). going down the same path as her mother—she

5. Use narrative to develop your side’s story. Visual words aid in readability and help a reader to remember your argument.

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Visual words: example The third weekend in January was busy at the On the way out, he called his girlfriend and the Black and White Café. So Monday morning its two talked while he drove home across owner Feras Rahman replenished his stock. He Milwaukee. After hanging up with her, he called ordered 50 lbs. of onions, 25 lbs. of peppers, one Sciortino’s Bakery and put in the next day’s bread gallon of buttermilk dressing, and 80 lbs. of order before arriving home and heading to bed. chicken—40 lbs. of chicken breasts and 40 lbs. of chicken wings. That order would be filled the next Around 4:30 a.m., Rahman received calls telling day, sometime after four. After the Café’s Monday him that his restaurant was on fire. He hurried lunch crowd cleared, Rahman decided not to wait back to the Café, and when he got there, the on the order and headed to the Restaurant Depot street was blocked off with fire trucks. A five‐ to pick up 80 lbs. of chicken and some other alarm blaze consumed the building that housed supplies. He then headed back to the Café and his Café and with it, two other restaurants, a took care of the dinner crowd. A few regulars nightclub, and ten apartments. With the building’s straggled in late and Rahman chatted with them other tenants and business owners, Rahman was until they left, sometime after 11:00. He and the directed to a nearby McDonald’s. cook then cleaned up and closed down the restaurant. The cook headed home after Joe Bugni, Appellant’s brief, U.S. v. Rahman (cites midnight, and Rahman took care of some omitted). inventory for an hour before leaving with a laptop.

6. Use public policy and practical realities To explain how and why the court should adopt your position on appeal.

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Use public policy and practical realities: example Petitioner’s reply brief in Richards v. Wisconsin: Moreover, the Department of Justice’s own Uniform Crime Reports: Law Enforcement Officers Killed and Assaulted (UCR) from 1981 to 1994 suggest probably only seven officer deaths occurring during drug raids where an announcement was clearly reported. (Petr.Br.App.B) This is not to minimize the risk to the police in executing search warrants for drugs. However, under existing procedures, accommodating Fourth Amendment interests, even after the assertedly necessary “dynamic entry “ the peril is not from unannounced entry, but from officers being shot by assailants hiding in other rooms in the residence after the entry, presumably after the occupants have heard the shouting of the police officers pointing guns at their heads of others while they are on the floor face down being handcuffed (but maybe not). There is no way of knowing from the UCR summaries whether the shooters knew that the intruders were police in spite of alleged announcement. Henry R. Schultz, Jack E. Schairer, David R. Karpe, John Wesley Hall, Attorneys for the Petitioner, United States Supreme Court Reply Brief, 1997

Use public policy and practical realities: example Respondents’ Brief in Richards v. Wisconsin: The danger confronting the police during narcotics investigations is also reflected in the number of officers killed in drug‐related situations. The following chart is based on reports of law enforcement officers killed in the years 1988 through 1994 found in the annual U.S. Department of Justice, Federal Bureau of Investigation, Uniform Crime Reports, Law Enforcement Officers Killed and Assaulted documents. In those years, 490 officers were killed. Of those, 52 were killed while involved in drug‐related investigations. The deaths came in a variety of circumstances, such as during the execution of search warrants, during undercover investigations, during traffic stops where drugs were later found in the cars and other situations involving drugs. The chart indicates the total number of officers killed in the year and the number killed in various drug related situations. James E. Doyle and Stephen W. Kleinmaier, Attorneys for the Respondent, United States Supreme Court Respondent’s Brief, Richards v. Wisconsin, 1997

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Suggested Additional Reading Linda H. Edwards, Readings in Persuasion: Briefs that Changed the World (2012). Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates (2d ed. 2014).

16 Preparing a Hall of Fame Brief Wisconsin State Bar Convention, June 17, 2016 Melissa Greipp, Marquette Law School

1. Develop context before detail.

a. Use roadmap paragraphs under every heading to orient a reader. b. Place meaningful headings in a position of emphasis. c. Drive your argument with probative thesis sentences.

2. Advocate for a rule.

a. Tell the reader what rule you’re seeking. b. Support the rule with reasoning from precedent cases. c. Follow Huhn’s five types of arguments: 1. Text: interpreting enacted law through plain meaning; canons of construction; and intra-textual arguments 2. Precedent 3. Intent: interpret intent of those who wrote the text, e.g. by text of the law, drafting/legislative history, official comments, etc. 4. Policy: consequentialist arguments about underlying purpose of the law 5. Tradition: e.g. industry customs in commercial transaction law; social traditions in allocation of liability for torts Wilson Huhn, The Five Types of Legal Argument (3d ed. 2014). d. Employ analogies that advance your rule: compare facts and reasoning from precedent to facts from your case. How does the reasoning advance your argument? Tell the reader what is significant about this analogy to your overall argument.

3. Lead with your favorable arguments.

a. Your best arguments must come first. The reader is most ready to pay attention at the beginning of an argument, a paragraph, or a sentence. b. Lead with the cases and other authorities that support your position.

4. Pull apart counterarguments.

a. “You should first present your own argument, and then meet the opposing argument by direct refutation or by pulling them to pieces in advance.” Aristotle, Rhetoric at 235-36, as quoted in Michael H. Frost, Introduction to Classical Legal Rhetoric, 52 (2005). b. Sandwich negative authorities and counterarguments in the middle of a paragraph to diminish their importance.

5. Use narrative to develop your side’s story.

a. Storytelling techniques keep a reader’s interest. b. Narrative motivates a reader. c. Visual words aid in readability and help a reader to remember your argument.

6. Structure paragraphs to build your argument’s momentum.

a. Use dovetail and generic transitions. b. Break up long sentences. c. Be mindful of rhythm and cadence. d. Vary sentence structure and openings.

7. Focus editing sentences to emphasize the subject and verb.

a. Create strong subject-verb connections. b. Favor active verbs. c. Use the passive voice only when necessary to advance your argument. d. Unbury verbs and avoid nominalizations. e. Eliminate “to be” verbs. f. Consider whether to use an adverb. g. Eliminate unnecessary prepositional phrases.

Preparing a Hall of Fame Brief Wisconsin State Bar Convention, June 17, 2016 Melissa Greipp, Marquette Law School

Sentence-level editing: focus your editing to emphasize the subject and verb.

1. Create strong subject-verb connections.

• Subject at the beginning of the sentence—one word or short clause with one main topic. • Followed immediately by a “strong” verb—descriptive and active word choice. • Benefit: strong visual image, easy to follow, creates linear sentence structure (associated with ‘clear and concise’ writing). • Example: Mrs. Smith represented that she and her husband had 20 years of dairy farming experience.

2. Favor active verbs.

• Sentence structure: subject-verb-object. • The subject is doing the action denoted by the verb. • Benefits: easier to read/comprehend in English, fewer words/more efficient. • Example: The bank approved a $180,000 loan to the Smiths secured by their real estate.

3. Use the passive voice only when necessary to advance your argument.

• Sentence structure: object-verb-subject. • The subject is being acted upon by the verb. • Generally, look for verbs ending in “ed” followed by the word “by.” o The house was destroyed by a hurricane. (Typical) o The kringle was eaten by the boy. (Variation) o The boat was docked. (No subject—we don’t know who docked the boat.) • Disadvantage: wordy, more difficult to read/comprehend. • Benefit: obscures a subject’s “bad acts” (e.g., the knife carried by the defendant in his backpack).

• Example: Of this amount, $145,200 was actually spent for cattle, although what the Smiths did with the remaining $14,800 is not known.

4. Unbury verbs and avoid nominalizations.

• Nominalizations: verbs made into a noun by ending ion, sion, tion, ment, ence, ance, ity • Unbury your verbs by asking who (or what) is doing the action in the sentence, and placing that person (or thing) in the subject position. Follow that subject with an active verb. • Unburying the verb will help you to add the right subject and object to the sentence. • Examples: is in conformity with, provide assistance, reach a resolution, make a determination (‘lawyer talk’) • Examples fixed: the contract conforms, we assist, they resolved it, she determined

5. Eliminate “to be” verbs.

• To be verbs to avoid in legal writing: o It is/was o There is/was/were • Problem: “it is” and “there is” often take the most prominent position in a sentence—the beginning—and waste space that could be filled with a strong subject and verb. You can’t visualize “there is” and “it is.” • Fix the problem: look for these phrases and replace them with concrete subjects and verbs. • Example: There were five gang members in the parking lot. (Verb is meaningless; subject buried in the middle of the sentence.) • Example fixed: Five gang members argued in the parking lot. (Subject in position of prominence in the sentence; you can visualize the verb.)

6. Consider whether to use an adverb.

• Adverbs modify verbs, adjectives, or other adverbs. • Benefit: when used sparingly, an adverb adds punch and color to a sentence, helping the verb to stand out. (the court correctly held) • Disadvantage: can sound childish or less sophisticated (e.g. “very”), or tiresome when overused throughout a document.

• Example: Until such time as the Supreme Court provides definitive guidance on the scope of the Apprendi decision, the Supreme Court's decision itself requires that the decision be applied to the present facts. (The adverb adds appropriate meaning here.)

7. Eliminate unnecessary prepositional phrases.

• Look for “of the” and “by the” and replace with an apostrophe. • Benefit: greatly reduces wordiness. The apostrophe does a better job of highlighting the possessive. • Example: The brief of the plaintiff identified the fallacies in the argument made by the defendant. (15 words) • Example corrected: The plaintiff’s brief identified the fallacies in the defendant’s argument. (10 words)

Preparing a Hall of Fame Brief Wisconsin State Bar Convention, June 17, 2016 Melissa Greipp, Marquette Law School

Paragraph-level editing: structure paragraphs to build your argument’s momentum.

1. Use dovetail and generic transitions.

 Use transitions to connect sentences and to signal shifts in logic.

• Generic transitions are words or short phrases that indicate logical connections between sentences.

o Examples: furthermore, however, moreover, therefore, thus o Generic transitions are like neon signs in a paragraph. o Use them sparingly to reflect the beginning, middle and end of a paragraph. o Use generic transitions primarily in your argument section, not in your statement of the case (where you want to highlight narrative).

o Example (transitions in bold):

After Petitioner was acquitted in the United States District Court for the Central District of California for the same conduct which constitutes the conduct here, he again filed all of his administrative remedies. Again, these were dismissed as untimely. Thus the Petitioner has exhausted his remedies not once, but twice. This is not the case of an inmate who is attempting to by-pass the administrative process. Rather, this case involves the Government’s efforts to avoid the merits of this case by the invocation of a doctrine the rationale for which is not apposite to the case at bar. Here, Petitioner has no means of redress, but to the judicial branch of the government, and any further effort to exhaust would be manifestly futile. Dean Howard Eisenberg’s reply brief in Sanchez v. Miller.

• Dovetail transitions are used to link up two sentences like a chain.

o Such sentences dovetail each other by referring to what was said in the previous sentence, but also introducing new content. o Think of interlocking dovetail joints in cabinetry. o The smoothest form of transition.

o Example (dovetail transitions in bold):

Described as an “experiment in federalism,” Michigan v. EPA, the Clean Air Act (“CAA”) assigns to the States an important—indeed primary—role in air pollution prevention and control. One of the States’ principal responsibilities under the Act is to prevent the degradation of air quality in those areas where national clean air standards have been attained. To this end, the CAA prohibits the construction or modification of a “major emitting facility” in any attainment area unless the facility is subject to the “best available control technology,” or “BACT.” BACT is defined in the CAA as “an emission limitation based on the maximum degree of reduction of each [regulated] pollutant *** which the permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such facility ***.” The “permitting authority” in this case—and in most cases arising under this provision—is the State. (Internal citations omitted.) Chief Justice John Roberts’ brief in Alaska v. EPA.

o HOW to create dovetail transitions: Repeat language in two consecutive sentences, usually at the end of one and the beginning of another (word or phrase, name to pronoun, this or that plus the repeated noun).

• To determine when to use transitions,

o Look at your paragraphs two sentences at a time. Do the logical connections between sentences make sense? o Look at each sentence individually: does the sentence require a logical connection between two phrases? o Also read your document out loud to hear if you need a transition.

2. Break up long sentences.

• A sentence that is three or more lines long is suspect. • A sentence that has more than one or two conjunctions is suspect (for, and, nor, but, or, yet, so). • Divide the sentence, usually at the conjunction. Use a dovetail transition, preferably, or generic transition, to connect the two new sentences. • Can you use long sentences occasionally? Yes, but know why you are doing so.

3. Be mindful of rhythm and cadence.

• As the words suggest, rhythm and cadence are the way the words sound together. Alternate short and long sentences, move placement of transitions in sentences, vary word length and choice (to avoid unintentional repetition), and vary punctuation forms and placement. • Read your sentences to yourself and listen to the cadence. Pay attention to sound of the stressed and unstressed syllables to check the rhythm of your writing. • Avoid beginning or ending paragraphs with overly long sentences.

• Example:

Moreover, it is significant that the Indiana Supreme Court decided the direct appeal in Petitioner’s case within the 14 day rehearing time period allowed by the Federal Rules of Appellate Procedure after this Court’s 1996 decision. Yet, no such motion was made by Respondent, nor did Respondent seek an extension of time to file a rehearing petition. If Respondent seriously thought the intervening decision of the Indiana Supreme Court undercut this Court’s 1996 decision, the time to raise the issue was on rehearing from that 1996 decision, not six years later. The state has waived this issue now. Howard Eisenberg’s reply brief in Gregory-Bey v. Hanks.

4. Vary sentence structure and openings.

• Avoid starting multiple sentences in one paragraph with the same word, such as the same transition. • Vary openings by making sure that some sentences in a paragraph have a modifying clause at the beginning of the sentence followed by a comma, while others do not include such a clause. • Vary whether sentences are stated in the positive or the negative. • Excellent online resource on this topic: https://owl.english.purdue.edu/owl/resource/573/01/

• Example:

Appellant has filed with the Court an Appendix consisting of the transcript of the plea proceedings in the state trial court. He submits that it is essential to review these proceedings in their entire[t]y, as a whole, to determine the validity of the plea. Applying this standard to the instant case, the proceedings [cannot] sustain the plea. Respondent concedes that the state trial court erroneously explained the sentence structure to the Appellant. Respondents do not deny that the trial court failed at any time to ascertain Appellant’s knowledge of what he was pleading guilty to. Dean Howard Eisenberg’s reply brief in Rogers v. Duckworth.

Seven Appellate Brief Writing Tips A Supplement to Preparing a Hall of Fame Brief

Wisconsin State Bar Annual Meeting and Conference, June 17, 2016

Jake Wittwer, Wisconsin Department of Justice, Criminal Appeals Unit1

1. Focus most of your time and attention on the analysis. a. You have limited time to prepare your brief. Use it wisely and focus on the application of the law to the facts of your case, and on responding to your opponent’s arguments. b. A great narrative in your statement of the case never hurts, but cases are won or lost in the argument section. c. Give the court a roadmap to write the opinion. Then celebrate when it includes this wonderful phrase: “As [name of your client] argues …”

2. Like Prof. Greipp says: Provide context. a. All readers want to know: Why am I reading what I’m reading? b. Appellate judges come to each case cold. They don’t know what your case is about, and what’s at issue. Fill them in—context before detail. c. In a response or reply brief, summarize your opponent’s arguments with cites to the brief before engaging those arguments.

3. Use quotes when setting forth the law and the record. a. An artful paraphrase might read better. But it might also cause the judges to wonder: Is that really what x case says? or Is that really what happened at trial? b. Quotes reassure skeptical judges, and build your credibility. c. To quote Judge Lundsten: “Judges don’t trust you…. News flash: Briefs frequently contain misleading and flat-out wrong assertions of fact and law…. [Y]ou should take into account the lack-of-trust factor when drafting your brief. The solution is to increase your use of self- authenticating assertions. Self-authentication is achieved through the use of cites and quotes.” “Puzzling Briefs and Skeptical Judges,” CLE program outline, Appellate Practice Workshop, October, 1, 2010, Madison, Wisconsin. d. But keep quotes brief by providing just what’s relevant. If you must use a block quote, introduce it with a sentence signaling what’s important in the quote.

1 With many thanks to Judge Paul Lundsten of the Wisconsin Court of Appeals. Some of these tips are taken from a brief writing CLE program Judge Lundsten has presented to many groups, including several court of appeals law clerks in 2004. 4. Don’t use the kitchen-sink approach. a. Stick with your best arguments. Weak arguments hurt your credibility, and threaten to bury your better arguments. b. Also, don’t be afraid to make a concession or two when appropriate. It’ll enhance your credibility with the court.

5. Have at least two people review your brief. a. Ask that they provide detailed feedback. A general “OK” without constructive feedback won’t improve your brief. b. Ideally, one reviewer should have experience with appeals. And one (can be the same person) should be unfamiliar with your case.

6. Learn and follow the appellate rules. a. Egregious violations of the appellate rules can result in sanctions, and less serious mistakes hurt your credibility. b. Read Wis. Stat. Rule 809.19 (briefs and appendix); If you haven’t filed many briefs in the state appellate courts, look at a few filed by the State Public Defender’s Office or the Wis. Department of Justice. c. Wisconsin Stat. Rules 809.19(1)(e) and (3)(a)2. require parties to follow the citation form set forth in The Bluebook and SCR 80.02. d. Other resources: Michael S. Heffernan, Appellate Practice and Procedure in Wisconsin (6th ed. 2015); Guide to Appellate Procedure for the Self-Represented, Clerk of the Wisconsin Supreme Court and Court of Appeals, Rev. Aug. 2015, https://www.wicourts.gov/publications/guides/docs/proseappealsguide.pdf

7. Make good use of the appendix. a. In the Wisconsin appellate courts, appellants must file a “short appendix” containing “limited portions of the record essential to an understanding of the issues raised.” Wis. Stat. Rule 809.19(2)(a). The respondent may file a supplemental appendix. Rule 809.19(3)(b). b. The purpose of the appendix is to assist busy judges. See State v. Bons, 2007 WI App 124, ¶ 21, 301 Wis. 2d 227, 731 N.W.2d 367. Last year, nearly 1000 cases were submitted on briefs in the Wisconsin Court of Appeals. Don’t make the judges go to the record to find a document necessary to decide your case. Put a copy in the appendix. c. But don’t include full trial transcripts or items already included in your opponent’s appendix.

One more tip: Join the Appellate Practice Section of the Wisconsin State Bar. The section publishes a quarterly newsletter for practitioners, De Novo; maintains an email listserv; sponsors a pro bono program that has provided over $3 million in services to the indigent, and runs a Virtual Help Desk for the unrepresented in the state appellate courts; puts on seminars and workshops taught by appellate judges and experienced practitioners; and holds an annual competition to recognize outstanding appellate briefs.