From time to time, we appellate lawyers may find ourselves in the position of arguing from someone else’s brief. Now, to be clear: The brief itself may be effective. It may even be good. But it’s not ours. Every lawyer has their own style. As Brother Emmert can attest, I take a maximalist approach to these things. For example, I like to cover as much as possible in the briefs, for any number of strategic reasons. I tend to anticipate and rebut arguments that I think the other side might raise. I also favor bright colors, shrieking italics, and lots of pictures. If appellate lawyers were movie directors, I’d be downright Tarantinoid.
Most briefs (probably to their credit) are not that.
To prep to argue from someone else’s brief, you have to recreate the record review and legal research that would have gone into writing the thing in the first place. So it takes a bit longer than usual (which, depending on billing arrangements, can be bad or worse). All that is fair enough, I guess, but then, once you figure out how you want to present the arguments, you have to go back and make sure that you can fairly tie them to the brief to avoid bad-brief waiver and recriminations. All in all, this can be a heavy lift.
But then you get to the argument itself. Now, one of the benefits of a maximalist brief is that it tees up a minimalist oral argument: Having said all that you want in the briefing, if the court seems to get your argument, you can just sit down. And you should sit down! But what if you haven’t had a chance to say everything you want, like setting up and knocking down the steel-man version of the other side’s argument? God forbid a clever clerk comes along with a strong argument for the other side that you haven’t had a chance to address. In the interest of completeness, you may find yourself arguing against yourself at the podium, so you can then go back and argue for yourself. Your client wonders, not without reason, if you have lost your mind. And the judges gaze at you quizzically, wondering why you can’t take yes for an answer. You become tedious. None of this is ideal.
Does this mean that I won’t argue someone else’s brief? Not exactly, but I’ll definitely factor in the degree of difficulty and strong potential for embarrassment.