I don’t usually get surprised at legal-writing CLEs. But I got surprised this morning.
For context, I was lucky enough to moderate a panel at the VADA’s annual meeting this morning. Justice McCullough, Judge Carson, and Erin Ashwell sat on the panel, which addressed practical legal-writing tips. If you know these folks, then you know that they have varied and fascinating life experiences. We ignored them. Instead of talking about, say, growing up in Marseille (Justice McCullough) or spending summers in the Catskills as a California kid (Judge Carson) or writing novels (Erin), we focused on my idiosyncratic tics and obsessions. You’re welcome, VADA!
Even so, the panel came off well.
Our leadoff question was aimed at Justice McCullough: What makes a brief helpful to a judge?
I was pretty sure that I was going to get something like brevity/clarity/easy access to controlling facts and authority. If you read enough books on legal writing, that theme will be beaten into your skull. Aim for half the page limit, if your best argument doesn’t win your weaker points will surely fail, etc.
But that’s not what Justice McCullough said at all. His response was legitimately surprising.
Justice McCullough said that he wants a brief to be thorough, well-researched, and organized. That’s it. He was very clear that he would take a thorough brief over a tight brief any day of the week. That’s what makes his life easier. So if you have controlling case law, give it to him. If you have persuasive case law, give it to him. If you have a secondary source, give it to him. If you have useful context for the legal question at issue, give it to him.
To be fair, Justice McCullough acknowledged that a trial judge might have a different answer. (Judge Carson did!) And he noted Chief Justice Roberts’ quip, “I have yet to put down a brief and say, ‘I wish that had been longer.’” Yet he stuck by his guns: To be helpful to the Supreme Court of Virginia, a brief should be thorough. A trial judge might not be able to read 500 pages about whether a medical record should be admitted into evidence. But an appellate court has to craft a written opinion that will guide the next 20 cases. And cases come to SCOTUS with tons of briefing. There’s little chance of an important issue being under-researched. At SCOVA, by contrast, that is a real risk.