Thanks to some of my Michigan colleagues, I learned today for the first time that a growing number of appellate court justices are reading briefs on an iPad. I guess it’s pretty clear that I’m out of touch. (I feel like Dr. Evil, on Austin Powers, when he demands the government pay him only $1 million.)

Fortunately for me, and for you, Daniel Sockwell, writing in the Columbia Business Law Review, is not so out of touch. In a piece entitled “Writing a Brief for the iPad Judge,” he offers some really useful advice for writing an appellate brief if you know your judge may end up reading it on an iPad. How would you know? By asking the clerk, of course.

Here are 3 of Sockwell’s tips:

1. Use Fewer Footnotes. Sockwell writes that “[o]ne of the advantages of reading on an iPad is that judges can adjust the screen view, zooming in and focusing on the current passage.” Unfortunately, this advantage is “lost if footnotes require the reader (judge) to constantly scroll to the bottom of the page for citations or substantive material.” Sockwell feels this compounds the risk that the judge or her clerk might not bother to read the footnotes at all.

2. Choose Your Font With Care. Sockwell notes that, while “the effective resolution of an iPad [is] closer to print,” there is a risk that “some of the best print fonts can become jagged or difficult to read at screen resolutions.” What should you do? Unfortunately, Sockwell leaves us wondering, though he does point us in the direction of an entire book on the subject of fonts (the perfect gift for that typography nut in your life). I started to do some of my own online research to find out what kind of fonts read best on iPads, but I came up short. I’m going to go with the plan to use a simple font rather than anything really creative. If someone has some clearer suggestion, maybe they could leave a comment.

3. Go With “Scientific,” Rather than Traditional Legal Hierarchical Headings. We typically use traditional hierarchical headings in briefs that are printed (e.g., Part I, Section A, Subsection 1, etc.). This method apparently doesn’t work well for documents read on an iPad, because it’s easy to lose track of which “Section A” one’s looking at. Instead, Sockwell urges brief writers to adopt the scientific hierarchical headings (e.g., Part 1, Section 1.1, Subsection 1.1.1, etc.).

Sockwell includes one more point: be sure to adhere to local rules, even if it means making a stylistic sacrifice. While double spacing of lines might look horrible on an iPad, it may be required by the local rules, at least until rules are universally updated to reflect the reality that more and more judges are reading briefs on iPads.

Hopefully I won’t ruffle too many feathers with the following pronouncement: appellate law practice is a distinctly different animal from trial or lower court practice and it requires specialized training or experience to do it well.

I know that many litigators advertise to their clients and the world that they can ably handle a writ or appeal. Some can. If you’ve handled appeals in your career, whether through budgetary or logistical necessity, and you’ve had success, perhaps you’ll prove me wrong. But, assuming your client is willing, assuming she can afford it, and assuming you can work effectively, efficiently and cooperatively with an appellate specialist, I want to suggest that your client’s odds of prevailing on appeal will be vastly improved by at least involving an appellate specialist whenever possible.

The remainder of this post proceeds from the premise that it is fiscally and logistically possible to involve an appellate lawyer. A lingering problem arises from the impossibility of knowing, at the outset of a dispute, whether it will result in an appeal and a specialist will ultimately get involved. Certainly some cases are unlikely ever to lead to an appeal; I’m thinking here of disputes which are destined by contract to be decided through binding arbitration. Other cases, by virtue of their issues or parties, are virtually guaranteed to see an appeal–or many; here I’m thinking of a case like Apple v. Samsung. There’s just too much at stake for either party to go gentle into that good night without first exhausting every avenue of appellate review.

I call this a “lingering problem,” but it’s really more of a dilemma. Specifically, what can a litigator do, when it’s unclear if an appellate court will ever be asked to disturb a trial court’s ruling, to improve her client’s chances of success if an appellate issue does later arise?

In answering this dilemma, I solicited input from a true expert. Ben Shatz is a partner at the Manatt firm in Los Angeles, a certified appellate specialist from the state of California, a fellow blogger, a prolific writer and, most importantly, a good guy. What follows is our list of five ways that lower court litigators can make it more likely, if their case ultimately requires appellate review, that their clients will gain the most from hiring an appellate specialist.

1. Involve an appellate lawyer sooner than later. You probably saw this coming, but it’s worth stating. If it is economically feasible, Ben suggests an appellate specialist should become involved early “to help review theories, address key motions, spot potential writ issues, pre-cog anticipated appellate issues, review jury instructions and verdict forms (which are fertile areas for appellate review), and help with post-trial motions (which often preview appellate issues).”

2. Preserve that record. Again, obvious. But in the heat of the battle, my focus as a trial lawyer is almost always on convincing the single robed judge before me, not a panel of appellate justices. Ben suggests that “appellate kibitzing can help make sure points are properly raised and not waived.” So don’t forget to kibitz. And try not to let an impatient trial court judge prevent you from saying all you need to say to make a good record; this sometimes takes fancy footwork, particularly if the judge senses you’re just making a record to use later in seeking to overturn his ruling. (See my earlier post on judges playing games with the record.)

3. Don’t waive notice. Ben reminds us that, “too often, after losing a motion (or anything), trial counsel will meekly waive notice. But formal written notice is very useful in figuring out what happened and when, later down the road. Also, written notice often is the trigger for writ review, so it’s good to have a clear starting date for calendaring.”

4. When in doubt go ahead and order a transcript. This is actually two separate points. First, if you’re in a state like California with a struggling judicial budget, be sure to make sure there’s going to be a court reporter taking down the proceedings at any hearing in which there is even the slightest chance a writ or other review may be sought. This requires both ordering and paying for a court reporter.

The second point comes from Ben: “if you just lost a motion and are thinking about a writ, order a transcript right then; take steps to get a written order; don’t waive notice; ask immediately for a stay (or extension to file a writ, if allowed by the relevant statute).” As you’re probably starting to understand, this fourth point requires you to think about the possibility of appellate review before you actually appear for the hearing. Remembering on the morning of the hearing that you needed to order a reporter will be probably be too late.

5. Maintain clean, organized files. Finally Ben reminds us that “It’s not useful if I’m given papers that are annotated by hand (and thus can’t be used in an appendix).” Remember, too, that your client is hiring an appellate specialist for his or her highly specialized knowledge and skills. These do not include conducting “discovery” through your file to find key documents or exhibits.

So keep these suggestions in mind, even when it’s not yet clear there’s going to be an appeal. And, if there is an appeal, think about calling Ben or another appellate specialist, to assist you in getting it done right.

A colleague who recently passed the California Bar Examination hosted a group of us to a round of drinks and the talk turned to bar examination grading. Specifically, how little time the graders spent on each essay (I think it was a matter of seconds). Our group included a lawyer who had worked briefly as a tutor to recent (or not so recent) law school grads on how to pass the bar. I learned for the first time how much emphasis is placed by the graders on headings, or portions of exam answers that are underlined or set apart some other way. She explained that, because the graders spend such a minimal time on each essay, headings or other highlighted matter take on a special importance.

I’ve been told this is not so unlike the limited time and attention some judges and their clerks spend reading legal briefs, underscoring the importance of well-chosen and composed headings. I seem to recall hearing somewhere that some judges and clerks sometimes go no deeper in a brief than a review of the headings.

Obviously, then, headings can be particularly important in legal writing. I consulted legal writing guru Bryan Garner’s The Elements of Legal Style, and found that he offers three issues/rules to keep in mind when crafting headings and subheadings. Here’s what he says:

“1. Do not rely on headings to provide transitions. You still need to prepare the reader–perhaps with a transitional word (therefore) or sentence (That brings us to the final point).

2. Be sure that any headings you use convey a definite message to the reader. A vague or ambiguous heading defeats itself.

3. Shun generic headings, such as ‘Facts’ or ‘Background,’ ‘Analysis,’ and ‘Conclusion.’ These often falsely suggest that the facts are discrete from the analysis, or that the analysis is discrete from the conclusion. Unless you are writing in a medium that requires formulaic headings, such as the ‘Statement of Facts’ in a brief or student memorandum, such headings give the impression that the writing follows a formula. And you may even make it formulaic by failing to analyze what organization best suits your purposes. Make your headings serve your text, not vice versa.” (pp. 77-78)

“In addition,” Garner suggests, “make [headings] . . . uniformly brief.” Id. at 78. My girlfriend in law school worked as a legal secretary (in addition to her full-time law school case load). I recall asking her to show me some professionally written legal briefs from her firm. What struck me was both the brevity and informality of the headings, particularly in contrast to the formal headings we were being taught to write by our legal writing professors (some of whom, I’m thinking, had never actually filed a legal brief with a court). I was stunned by one real world opposition which featured a heading that merely said: “This Motion Is A Complete Waste Of Time.” While I don’t think any reader would find this heading compelling, it does have sense of immediacy–of getting to the point–that the lengthy, formal headings we learned to write in law school sorely lacked, but that most readers appreciate.

Perhaps when we penetrate to the farthest reaches of this era of Twittering Tweet-like communications, where brevity is not only prized, but required, there may come a time when 140 characters is all you get. Better make those headings count!

Because I pay attention to analytics, I know that my most popular posts are those in which I have passed on advice or comments from a judge or judge’s clerk. People apparently find and read my blog because they want to get some inside scoop from the bench, as opposed to my witty, original repartee. Best not quit my day job, I guess.

At any rate, a talented Michigan appellate specialist I know attended a recent appellate bench-bar conference and brought back some wise comments from the judges and court staff, “of which,” as Bob Marley sings, “I’ll share with you.”

1.  When Briefing the Facts.

When briefing the facts, don’t misrepresent the facts or get too argumentative. Eliminate most adjectives in the statement of facts section. Also be wary of including too many facts and dates. Dates that aren’t relevant to the issues to be decided by the appellate court are distracting and tiresome. Also bear in mind that the appellate court rarely needs to know the entire procedural history.

2. When Briefing the Law.

Briefing the law requires honesty. Do not mischaracterize the law generally or the holding or import of a particular case. Strive for economy; view the page limit as an outer limit, not a goal to reach. Another problem specific to appellate briefing is the tendency to raise too many issues. Judges complain that lawyers often fail to recognize and identify the appropriate standard of review. Judges should be treated as “generalists” who may need a primer on the law in the area and a tutorial on the industry involved. Bear in mind the “ABCs” of good brief writing: Accuracy, Brevity and Clarity. Do not attack opposing counsel in the brief.

3. When Arguing Before An Appellate Court.

The judges cited “reading from a prepared text” as among the most common errors in oral argument. Treat the argument as an opportunity for both the lawyers and the judge(s) to be educated. Do not fail to answer the questions the judge(s) actually asked. Be sensitive to “cues” from the bench as to what a judge believes the real or dispositive issue to be. Do not attack opposing counsel in oral argument. If you are lucky enough to be arguing before a state or the US Supreme Court, be prepared to answer the question, “What rule are you asking us to establish?”

There. Now go kick some appellate ass.

This post could be alternatively titled: “Beware The Interloper With The Pen,” or “Why I’m Not A Great Team Player At The Writing Table.” In a recent article in the ABA Journal,”Why Lawyers Can’t Write, legal writing pro Bryan Garner discusses why lawyers often think they’re far better writers than they really are. The article is perceptive. He attributes our collective blindness to our inadequacy on a phenomenon termed the Dunning-Kruger effect. Here’s what he says:

“In 1999, two Cornell psychologists—David Dunning and Justin Kruger—conducted a series of studies showing that unskillful or unknowledgeable people (1) often think they are quite skillful or knowledgeable, (2) can’t recognize genuine skill in others, (3) uniformly fail to recognize the extremity of their own inadequacy, and (4) can recognize and acknowledge their own previous unskillfulness only after highly effective training in the skill.”

I agree with Garner that lawyers often suck as writers (my term, not his). There are exceptions. Most appellate specialists I know are pretty handy with a pen (yes, Ben Shatz, I mean you). But I would say most legal documents, briefs, letters, agreements that come across my desk are worth about a “C.” Considering what these lawyer-writers are paid for “C”-quality writing, they’ve really earned an “F.”

One point Garner makes that rings true concerns collaborative writing. Almost any lawyer who works at a law firm, large or small, has to contend at some point with another lawyer who insists that certain edits be incorporated into the final product. Even solo practitioners are not immune, as clients can rightfully insist on edits. Garner makes this point about this kind of “forced” collaboration:

“Sometimes, I’m told, a brilliant legal writer will be asked to incorporate a sentence or two, unchanged, written by an inept one. It’s a bad feeling. How would the pianist Vladimir Horowitz feel about inserting a 30-second sound clip into one of his recordings? A sound clip played by a pianist who had hardly progressed beyond “Chopsticks”? It must feel awful.”

Lest you get confused, let me say here that (1) I don’t consider myself a “brilliant legal writer,” and (2) I don’t equate my skills (in anything) with Vladimir Horowitz. But Garner’s point is well-taken, even for a middling writer like me. My mentor about whom I often speak is actually a really great writer, so his input is almost always an improvement. But over the years I’ve been forced to incorporate some real dreck into briefs or letters.

If you’re a junior lawyer and the edits come from a senior partner, or your client has suggestions, you may be powerless to argue. Don’t sacrifice your future over an awkward and unnecessary edit.

But you can also learn from the forced-edit experience, because it affords an opportunity to evaluate why you write as you do, and why you don’t think an edit improves the product. One lawyer with whom I worked for several years was only a couple of years senior to me, but I really admired his legal reasoning skills. He also had a tremendous grasp of the case-law surrounding the issues with which we routinely dealt (automotive product liability). But his writing was vomit. It was not that he couldn’t write–it was that he didn’t know how or when to stop writing. He was verbose and insisted on including every possible quote, from every possible case, to illustrate his point, without any regard for the judge and clerks. Fortunately, while he was senior to me, he was not so senior that I was powerless to re-edit his edits, which I did without hesitation. The final product benefited from his big brain, but I trimmed off much of the unnecessary excess. Evaluating his edits forced me to confront the question how much is enough and how much is too much.