Tuesday, January 03, 2006

Quick Hits. Tuesday, January 3, 2006.

FISA / NSA Wiretapping Link Repository
If you are looking for the FISA / NSA Wiretapping Link Repository, it is HERE. Blog posts on this story are starting to "wane" a bit. I will keep updating this, but it may only be updated every couple of days now, unless blogosphere interest resumes or until something actually happens.

The Chess Match of Appellate Brief Writing

Although I don't do appellate work myself, I have friends who are in appellate practice, on both sides of the bench. Based on conversations with them, I think it is safe to say that many lawyers don't put the time or energy that is warranted into crafting the appellate brief. Nate Oman wrote an eloquent entry comparing appellate brief writing to chess. An excerpt:

A well written brief has a kind of beauty about it. It will have a unifying structure, a clear skeleton on which the flesh of the argument hangs. Doctrinal arguments and policy arguments will be woven together, adverse precedents will be carefully distinguished without seeming glib or plodding. The writing will be clear and free from jargon (except for the occasional flourish of a Latin maxim). At the end of the brief, the reader will be left thinking, “The law supports the appellant’s claim and it is a good thing to, as our law is wise and just and clear.” A badly written brief is all ugliness. The question presented will run on for pages. The argument will be lost in a profusion of points and subpoints, never coalescing into an identifiable structure. Adverse precedents will be ignored or labored over for pages. Doctrine and policy will be left in stark isolation, presenting the judge with the unhappy choice of enforcing a bad law or ignoring the law to reach a just result.

In this sense, an appellate brief is like a game of chess. A person who knows how the pieces move, but has no grasp of how the game is played will push pawns and bishops aimlessly around the board, attacking and defending pieces with no discernable strategy or plan. Weaknesses in the player’s position will develop, backward pawns, and hanging material will proliferate as pieces clog the lines of attack of their fellows until ultimately the game sputters to an accidental ending. In contrast, in a well played game of chess each move will fit into a position or plan. There will be identifiable strategic goals and great care to avoid the minor weaknesses that will later flower into catastrophe. The game will utlimately be decided by the execution

Many of those thoughts were echoed over at Have Opinion Will Travel, a blog that appears to be authored by an unidentified appellate judge. An excerpt:

Like Nate, I read briefs for a living and like him I thoroughly enjoy a well written brief. Why? Because it is more inclined to grab my interest intellectually and at the same time it makes my job easier. A well written brief presents a party's legal position in a way that stimulates thoughtful consideration of the legal issue(s) presented and challenges the judges who read it to reconsider the implications of the application of existing precedent in light of what may be unintended consequences.

Alas, in my experience, such a brief is the exception rather than the rule. Most briefs are mediocre in the sense that little thought has been given to the best way to present the issues and the legal arguments in the most persuasive way possible. Some appear to be little more than the unstructured regurgitation of aspirational platitudes and generalizations about "fairness" and "justice" rather than tightly reasoned and articulated legal arguments. Any appellate judge will tell you that appeals are as much a part of the adversary process as the trial and therefore they do their best work when they get help from the lawyers in the form of tight, well crafted legal arguments woven into the facts.

The message, from both of these, seems clear: appellate briefs demand and are worthy of time, attention, and detail. They require strategy and forethought. Otherwise your arguments will simply be pawns to be dominated by your opposing counsel's queen. Checkmate.
(**UPDATE: Follow-up by Nate on the "divine" portion of his original post. UPDATE**)

The future of A3G?

As I noted yesterday, "Article 3 Groupie" (A3G) has returned to the blogosphere. Some sources, however, are now reporting that David Lat (the author of underneaththeirrobes) may be taking over the posting duties at Wonkette. No official word yet from A3G or what the future of utr might be if this is true.

(NOTE: the linked posts on this story also point you to the all new Wall Street Journal Law Blog.)
(UPDATE: January 4, 2006: Former Wonkette author, Ana Marie Cox, has confirmed that she is leaving the blog and that she will be succeeded by David Lat.)
(UPDATE: January 6, 2006: Ana Marie Cox has posted on Wonkette about her leaving and being succeeded by Lat and Alex Pareene.)

Alito Confirmation Hearing Preparation

The Alito confirmation hearings start up next week. To start your preparation, go check out THIS post over at Sentencing Law and Policy about "Alito and SCOTUS work in the crime and sentencing arena."


Blogger Pooh said...

If you haven't seen it yet, I recommend Gary Farber's stuff on the NSA matter - fairly techinical (and definitely alarmist, but if there is something to be alarmed about...)

3:44 PM  
Blogger Kierkegaard Lives said...

Thanks Pooh. I'm adding it to the repository right now. Some interesting stuff over there, and I had not yet seen it.

4:07 PM  

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