written by guest blogger John Campbell
May it please the Reader. The issue before you today is whether there is room for creativity in appellate practice.
Of course, the lines above are meant to be a joke. But, while this is a strange opening line to a post, most appellate attorneys start their arguments in just this way. There is a persistent belief that appellate courts are dry places and that formality and tradition are required. This view is even put forward by some members of appellate courts. Justice Scalia bemoans contractions. Other judges express disdain for “emotion” in arguments, reminding attorneys that they are not “jurors.” The appellate rules bring more of the same, with emphasis on word counts, font size, and whether headings are double spaced. One could easily get the impression that whatever appellate practice is, it is certainly not creative.
But I’d suggest those people are wrong. In my time as an appellate attorney, I’ve come to believe that creativity is at the heart of good appeals. Admittedly, the creativity I’m talking about is bridled. It isn’t about beauty or pure expression; instead, it is about rethinking how things have always been done. Included below are some thoughts on how you might shake up your appellate practice, and in doing so, obtain better results for clients.
First, rethink the prewriting process. Many appellate attorneys work in isolation, but they should start with collaboration. Before much research, before outlining, and certainly well before any drafting, bring other attorneys into the mix. If possible, involve collaborators with different experiences and knowledge bases than you. To make the collaboration most successful, change the goal from “getting the right answer” to brainstorming all possible answers. The mood in the room should be like playing a mentally rigorous game or solving a riddle. There is no right or wrong answer yet; all ideas, all frames, all metaphors, all possibilities should be presented for discussion. If you struggle to capture this mood, literally play a game first. Solve riddles. Pull out Cranium. Make words from other words. Then dig in. From this session, you will almost certainly recognize gains. The case will be fleshed out in ways you never considered, you’ll have new questions about the file and about the law, and you just might stumble upon a frame that makes the complex seem simple.
Next, rethink how you write. Many of us were trained to engage in legalese. We use words like “heretofore,” “supra,” and “aforesaid.” What we weren’t trained to do was employ metaphors or to tell a story. We weren’t trained to refine themes or use punchy verbs. And we certainly weren’t trained to consider creative typefaces, charts, graphs or, dare I say it, color pictures. Sound crazy? Consider this advice from the Seventh Circuit in its handbook on appeals:
Briefs are like books rather than newspapers. The most important piece of advice we can offer is this: read some good books and try to make your briefs more like them.
Judges get tired of technical briefs. Make yours memorable. If you really want to push the boundaries, since almost all judges now read on tablets, play around with submitting a “tablet”-friendly version, complete with internal links to the appendix, interactive images, and a font better suited for the digital world.
Finally, think about employing creative techniques for oral argument. I once started an argument with a riddle at a state supreme court. The judges looked delighted. Another time I compared the case to a baseball game. You need judges to remember your case, so toss aside “the three reasons to affirm are” and try something new.
I admit that with all these things comes risk. Some judges might not like it, your client might wonder if you are a “serious” attorney. But there is also potential reward. You just might make a splash by doing things differently, and you’ll have more fun too.
Before becoming a professor at Denver University, about 50 percent of John Campbell’s practice was appellate work. He has practiced around the country, including the state supreme courts of Colorado and Missouri and the United States Supreme Court. He has won some statewide awards for his work (one of the most influential appellate attorneys in Missouri in 2011 and 2013), and continues to work on appellate cases and argue them regularly. He now also presents on appellate writing and argument. His focus is on creative approaches to appellate law, both in brief writing and in argument.