You’re not writing a treatise, a law review article, or a comperehensive Corpus Juris annotation. You’re trying to persuade one court in one jurisdiction. And what you’re trying to persuade it of is not your (or you junior associate’s) skill and tenacity at legal research. You will win no points, therefore, for digging out and including in your brief every relevant case. On the contrary, the glut of authority will only be distracting. What counts is not how many authorities you cite, but how well you use them.

That’s what Scalia and Garner had to say about string cites in Making Your Case: The Art of Persuading Judges. More pointedly, they also said “Indeed, string cites should not be used at all except for propositions of law that may be novel to the court. (Emphasis in original)

My view on string cites is a little more lenient that Scalia and Garner’s. In my opinion, there is one good reason to use string cites: when it’s important to present multiple authorities for a point of law. So, for example, you could use string cites to demonstrate that many jurisdictions follow the rule for which you are arguing. Or, staying within your jurisdiction, you could use a string cite to show that a rule is well-settled in your jurisdiction. In either of these circumstances, you may want to consider including a parenthetical explanation following each cited case. If you use string cites, you may want to consider putting them in footnotes, so they are less of a disruption than they would be than if you leave them in the text.

It’s important to recognize that string cites aren’t analysis. If you think it’s necessary to use a string cite, use it to buttress your analysis, not to supply it.

Two final tips are in order. First, don’t interrupt the text in mid-paragraph with a string cite, as it can be very difficult to discern where the string cite ends and the text resumes (especially if additional cite are interspersed in the text that follows the string cite). You can accomplish this by creating a short, self-contained paragraph for your string cite.

Second—and it should go without saying—read all of the cases you cite. Don’t simply copy and paste string cites you find in court opinions. Be sure that the cases are actually on point (you my be surprised by how many aren’t), and choose the best of the bunch. If you don’t ensure that each cited case is relevant, you risk alienating your reader and losing credibility.

You saw what I did there, right? “Clearly,” like “obviously” and even “very” are called intensifiers because they are intended to make the proposition stated in the sentence stronger. However, they actually have the opposite effect.

As discussed in The Science Behind the Art of Legal Writing, an empirical study of apppellate briefs by Lance Long and William Christensen showed that the frequent use of intensifiers in briefs (particularly by appellants) is usually associated with a statistically significant increase in adverse outcomes for the “offending” party. Interestingly, the study also found that, when a dissenting opinion is written in a case, judges use significantly more intensifiers in both the majority and dissenting opinions. In another study, however, Long and Christensen actually found that the odds of reversal were higher for appellants who have higher intensifier usage rates, but only when the judge writing the opinion is also a prodigious user of intensifiers. At the trial court level, you can study you judge’s opinions for intensifier usage, but at the appellate court level you don’t know which judge will be writing the opinion in your case.

Furthermore, the universal theme among legal writing instructors and commentators such as Bryan Garner and Chief Justice Roberts is that intensifiers, at best, create unnecessary clutter and, at worst, negate their intended purpose by causing a reader to question, rather than be reassured by, the proposition being intensified.

Finally, in addition to avoiding the pitfall discussed above, abhoring “very” can help you draft a tighter and more colorful brief. In this, a thesuarus (or, more likely, thesaurus.com) is your friend. So, instead of writing that the defendant “ran away very fast,” you can say that he dashed, raced or sprinted away.

A dead giveaway that a trial lawyer—as opposed to an appellate lawyer—has drafted a brief is that the brief argues a lot of issues. What does “a lot of issues” mean?

In Winning on Appeal, Judge Ruggerio Aldisert put it this way with regard to how he reacts to briefs in civil cases:

Three issues: presumably arguable points. The lawyer is primo,
Four issues. Probably arguable points. The lawyer is primo minus.
Five issues: Perhaps arguable points. The lawyer is no longer primo.
Six issues: Probably no arguable points. The lawyer has not made a favorable initial impression.
Seven issues: Presumptively, no arguable points. The lawyer is at an extreme disadvantage, with an uphill battle all the way.
Eight issues: Strong presumption that no point is worthwhile. To the lawyer: Go home. Do not pass “Go.'”

In an article entitled The Credible Appellate Brief, author Bryant J. Spann pointed out that, “as a practical matter, raising too many issues irritates jduges and their staffs, because even if you have not been careful in assessing the claim’s merits, the court must be careful in its disposition of the claim. In other words, more issues means more work for a busy court.”

How do you decide which issues to raise? If an issue is a threshold issue—in other words, the court cannot go further without deciding the issue—raise the issue, and make it Point I of your brief. One example of a threshold issue is subject matter jurisdiction.

Another way to choose which issues to raise is to become familiar with standards of review. Will the court review an issue de novo, or can it reverse only for clear error? De novo is a much more appellant-friendly standard of review. And don’t worry overmuch if the standard is “abuse of discretion.” As Aldisert explains:

If one starts with an understanding of discretion as encompassing the power of choice among several courses of action, each of which is considered permissible, it would seem difficult, if not conceptually impossible, to disturb discretionary choice on review. Nevertheless, appellate courts continue to do so, couching their actions in language which disclaims a substitution of choices for those of the trial courts.

In last month’s blog post, I introduced you to the scathing opinion in In re S.C.. 138 Cal. App.4th 396 (2006). As a reminder, in that case. the county filed a dependency petition on behalf of a minor with Down’s Syndrome, based on the minor’s allegations that she had been sexually molested by her stepfather and her mother’s failure to protect her from continuing abuse. The trial court judge declared the minor dependent and found it would be detrimental to return her to her mother’s custody. The mother appealed.

The first sentence of the opinion was “[t]his is an appeal run amok,” and things just went downhill from there for the appellant’s lawyer. In addition to the summary of errors noted in last month’s blog post, here are some more choice words from the court:

Here, appellant’s counsel devotes only six and one-half pages of her 202–page brief to what she calls a “COMBINED STATEMENT OF FACTS AND HISTORY OF THE CASE.” The statement is a chronological description of events that occurred in the juvenile court. Nowhere in it is there a summary of the significant facts contained in the record. The only reference to the substance of a witness’s testimony is the following argumentative assertion by counsel about an expert called as a witness by the minor’s attorney: “[T]he sole purpose minor’s counsel could reasonably have in endeavoring to introduce this testimony in these proceedings, was to allow Dr. Miller to pontificate about CSAAS [the Child Sexual Abuse Accommodation Syndrome], and to tell the Judge what to find true.”

In the contention portions of the brief, appellant’s counsel does recite some of the facts. However, they are only those facts that are favorable to her client, thus violating another established rule of appellate practice. An appellant must fairly set forth all the significant facts, not just those beneficial to the appellant. (citation omitted).

Without any assistance from appellant’s counsel, we summarize the significant facts in the light most favorable to the judgment

* * *

Under heading 1 of her opening brief, appellant’s counsel claims the Sacramento County Department of Health and Human Services (DHHS) improperly detained the minor for more than 48 hours before filing a juvenile dependency petition. (Citation omitted.) She even alleges that “[t]humbing their noses” at the law, and with “clear intent to obfuscate,” DHHS workers engaged in “a blatant attempt to conceal this violation” by misrepresenting to the juvenile court when the minor was detained.

Responding to this attack on its integrity, DHHS asserts that appellant’s counsel misrepresents the facts and that, in any event, the claim of error was never raised in the juvenile court.

In her argument on appeal, appellant’s counsel—who was her client’s counsel at trial—makes no mention of ever tendering the objection in the juvenile court. Moreover, she does not even raise the issue of prejudice to her client. Consequently, we need not consider the matter any further.

* * *

In complaining about a delay that was for appellant’s benefit and which she caused, appellant’s counsel is trifling with the courts.

* * *

The juvenile court’s judgment is presumed to be correct, and it is appellant’s burden to affirmatively show error. (Citation omitted) To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error. (citations omitted When a point is asserted without argument and authority for the proposition, “it is deemed to be without foundation and requires no discussion by the reviewing court.” (Citations omitted) Hence, conclusory claims of error will fail.

In addition, appellant’s brief “must” “[s]tate each point under a separate heading or subheading summarizing the point….” (Citations omitted) This is not a mere technical requirement; it is “designed to lighten the labors of the appellate tribunals by requiring the litigants to present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised, as they read, of the exact question under consideration, instead of being compelled to extricate it from the mass.” (Citations omitted)

The contention under heading 2 of appellant’s brief, entitled “THE COURT ERRED IN FAILING TO DISMISS THE PETITIONS, THEREBY VIOLATING MOTHER’S CONSTITUTIONAL RIGHTS,” runs afoul of the above rules (1) by raising what appear to be five separate complaints that, because of the manner in which they are presented, are painful to read and difficult to understand, and (2) by failing to provide meaningful legal analysis and record citations for complaints raised under this heading.

* * *

Symptomatic of most of her appellate arguments, this contention is heavy on words but light on analysis. Indeed, after over six pages of prefatory text, her “analysis” is but one short paragraph…

* * *

This is no legal analysis at all. It is simply a conclusion, unsupported by any explanation of why the petition’s allegations were not sufficient. Hence, appellant has forfeited the claim of error

* * *

We are mystified as to how appellant’s counsel believes the record citations support the claim of error. The cited pages of the appellate record deal with a variety of matters, some of which seem to have no bearing on the claim of error. For example, pages 78 through 83 of the clerk’s transcript contain the forensic medical report of the minor’s external genitalia.

Since appellant’s counsel has not bothered to explain why these record citations are helpful to her client, we have no obligation to try to figure it out.

I could go on like this for many more paragraphs, but I think you get the idea.

And now, what you’ve all been waiting for: the consequences suffered by the offending attorney: the court ordered that, upon issuance of the remittitur, the Clerk/Administrator of the court was to send a copy of the opinion to the State Bar of California. Ouch!