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Avoid Dense Prose
A mostly excellent brief recently filed in the Supreme Court flirted with loss of its audience in the dense prose of the very first substantive sentence of the brief：
The issue presented in this case — which arises under the Federal Service Labor-Management Relations Statute， 5 U.S.C. § 7101， et seq. （“Federal Labor Statute”） — is whether the most basic policies of that Act should play any role in a major area of its administration， viz.， in determining whether a union acting as the exclusive collective bargaining representative of federal sector employees — having been selected by those employees through the secret ballot electoral processes provided by federal law — is entitled to the disclosure of personnel records of bargaining unit employees when such disclosure is “necessary for the full and proper” performance of that representative‘s collective bargaining functions.
The writer of that sentence asked it to do too much. The sentence introduces too many concepts without a pause. By contrast， one of the authors a few years ago had a rare opportunity to use lively prose to make his point， which was that an Arkansas highway tax unconstitutionally discriminated against interstate commerce by exempting trucks carrying agricultural products （which were by no coincidence predominantly local）， while fully taxing those carrying equally heavy shipments of other commodities （which came predominantly from out of state）
There is an old riddle： Which weighs more， a ton of feathers or a ton of bricks？ While many find the question deceptive at first， the correct answer， that a ton is a ton regardless of what is being weighed， becomes irrefutably clear once explained. But in enacting and now defending the NR Exemption， the State has managed to get the answer wrong — a ton of soybeans or chicken feed is treated as though it weighs less than a ton of baked beans or dog food.
The reader is sure to understand the point and may even have gotten a smile out of the arduous task of reading a brief.
Another point that frequently crops up with fact-intensive legal issues （for example， the sufficiency of the evidence to support the verdict） is whether it is best to recite all the relevant facts in the statement or save them for the argument. There is no general rule， but be aware of this： It is permissible to mention such facts briefly in the statement and then explore them fully in the argument. Often such treatment will reduce repetition and enhance the comprehensibility of your presentation. The section is called the Statement of Facts， but that does not mean all the facts you rely on must be there.
Turning to a point of general application， you should be especially careful how you refer to the court or agency below. If you are the appellant or the petitioner， you are， of course， asking the appellate court to reverse that court or agency. The appellate court knows that. It knows you disagree with the outcome thus far. It will reverse in an appropriate case. But its initial inclination， almost always， will be sympathetic to the fellow judge who had to sit through the trial or to the agency that had to sift through the entire record now being selectively quoted on appeal.
Criticism of the lower tribunal therefore should be stated carefully and objectively （for example， “the trial court did not address the ‘waiver’ issue” or “the agency‘s entire response to this argument was as follows”） Although this advice may seem obvious， lawyers do the contrary often enough that Judge Kozinski has been led to write， in a passage dripping with sarcasm： “Chances are I’ll be seeing that [lower court] judge soon at one of those secret conferences where judges go off together and gossip about the lawyers. I f ind that you can always get a good chuckle out of the district judge by copying the page where he is described as ‘a disgrace to the robe he wears’ or as ‘mean-spirited， vindictive， biased and lacking in judicial temperament’ and sticking it under his nose right as he is sipping his hot soup.”
Should the brief include a summary of the argument？ FRAP does not require a summary of argument. Supreme Court Rule 24.1（h） does， as do the local rules of many — but not all — of the federal courts of appeals. Even when the rules do not require a summary， it usually is a good idea to write one except in the simplest cases. And it is always essential to good appellate advocacy that somewhere in the brief — if not in a summary， then near the beginning of the argument itself or even somewhere in the statement — counsel provide an overview of the position they will be arguing. Without this， it often becomes impossible （or possible only after an amount of effort that exceeds what the judges are able to spend） to understand a litigant‘s exact position. If judges do not understand a litigant’s position， they may well substitute a position that is easy to understand — but is not what the party meant and is easy to rebut.