Last week, the VBA’s appellate practice section put on a top-notch panel on perspectives in appellate advocacy. The panelists were Judge Friedman of the CAV, Erin Ashwell, and Matt McGuire, with Kendall Burchard moderating.
Judge Friedman, in particular, stressed a few themes:
- Competition for judges’ time and attention. Judge Friedman reported that the CAV has 49 panels set for 2024, not counting en bancs, standing panels, and bond reviews. Each panel handles about 18 cases, give or take. That is a seriously heavy workload for each judge. So they greatly appreciate clear and direct writing.
- Writing for multiple audiences. That said, bear in mind that you are writing briefs for different audiences. Most of the judges on your panel are just trying to get to the right result, and they’d like the cleanest route to get there. So they love efficiency. But one of the judges on your panel has to get to the right result and figure out how to write the opinion. So that judge would appreciate a little more detail. And then there are are the clerks, who are bright and motivated but usually not that far out of law school. One solution is to run a tight argument in the main text, dropping occasional footnotes for the benefit of the judge writing the opinion and all the poor clerks wrestling with your argument.
- Tone. Judges perceive a belligerent tone as disrespectful. That’s true in general, and especially when the trial judge was the target of your ire.
Big thanks to Erin for organizing this excellent panel.