Topics for September 12, 2006: 1' Organizing and supporting the appellate argument, 2'Drafting persu

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Topics for September 12, 20061. Organizing and
supporting the appellate argument,2. Drafting
persuasive headings, and3. Other persuasive
techniques in appellate briefs.

• Appellate Writing Advocacy
• Fall 2006
• Professor Price

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From last time

• Theory of the appeal
• Outlining arguments
• Cover page, tables, appendix

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Organizational challenges in appellate
brief-writing

• Analysis
• parsing the issues and sub-issues correctly, and
  assigning them to appropriate spots in the
  structure
• Sequence
• ordering the issues and supporting arguments so
  that they both make sense and are persuasive
• Cohesion
• linking the parts and subparts into a cohesive
  whole

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One tool CREXAC

• What is CREXAC, according to Beazley?
• Which organizational challenges can it help with?

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• Conclusion This Court should hold (result).
• Rule If (phrase that pays) exists, then
  (result) occurs.
• Explanation In (Case 1), the court held that
  (phrase that pays) existed because facts
  reasoning.
• might need additional cases In (Case
  2), the court held that (phrase that pays) did
  not exist because facts reasoning.
• might need additional cases
• Application (Phrase that pays) ( or ?) my case
  facts.
• details about facts as needed
• might need either or both of the following
• Unlike (party or thing) in (case), (party
  or thing) in my case did not . . . .
• Like (party or thing) in (case), (party or
  thing) in my case did . . . .
• Conclusion Therefore, because (phrase that pays)
  exists in my case, (result) should occur.

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Potential limitations of CREXAC

• Legal rules are not really mathematical laws
• How does one incorporate policy discussion into
  the CREXAC formula?
• If you dont exactly follow the CREXAC formula,
  what might your analysis look like?
• It does not help with all organizational
  challenges
• Its the most help with analysis and cohesion
  within individual sections
• Much less help with analysis and cohesion
  throughout the brief as a whole
• Not much help with sequencing

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Other organizational concepts / techniques

• Use of placement for emphasis
• Headings
• Thesis sentences and thesis paragraphs
• Repetition of key terms
• e.g., phrase that pays

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The phrase that pays

• What is the phrase that pays?
• Why is the phrase that pays important or useful
  in organizing your legal analysis?

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Phrase that pays, cont.

• While a persons home is, for most purposes, a
  place where he expects privacy, activities that
  are exposed to the plain view of outsiders are
  not protected under the Fourth Amendment. Katz
  v. United States, 389 U.S. 347, 361 (1967)
  (Harlan, J., concurring).

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Phrase that pays, cont.

• IF a person exposes activities to the plain view
  of outsiders, THEN those activities are not
  protected against observation by the Fourth
  Amendments search and seizure limitations.

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Selecting the phrase that pays

• Green Tree Financial exercise
• review excerpt
• identify a phrase that pays
• write a rule using that phrase

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Providing an appropriate amount of explanation

• The more abstract the rule, the more explanation
  is required.
• The more controversial the rule, the more
  explanation is required.
• Exercise draft a paragraph explaining the rule
  you drafted for Green Tree Financial

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Appropriate use of quotations

• Avoid the Marie Antoinette syndrome
• Try a Tom Brokaw introduction for long
  quotations
• Or, dont block quote them!
• Examples Green Tree briefs

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Drafting point headings

• What are point headings?
• Why are they important?
• Beazleys three key points about headings.

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Point headings, cont.

• Reviewing point headings in sample briefs, from
  Green Tree Financial

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Other persuasive techniques / concepts

• Maintain your credibility
• Be respectful
• Be well-prepared

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Good researchcredibility

• Spirk v. Centennial School District, 2005 WL
  433321 at 7
• If the Motion to Dismiss and the accompanying
  Brief in Support had displayed but a single
  example of less than exemplary research or
  analysis, it would have gone unaddressed here
  inasmuch as occasional oversights, while
  disappointing, are understandable, generally
  innocent, and sometimes unavoidable. However,
  here, the incidents of deficiencies are too
  numerous to ignore and too fundamental to
  excuse.

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Persuasive techniques cont.

• Be confident of your position
• Know the consequences of your position
• Be focused on the most important points

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Persuasive techniques cont.

• Help the court
• Use positions of emphasis with care, to persuade
• Use language with care, to persuade

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Persuasive techniques

• Remember the small stuff
• On a final note, the Court issues a comment on
  the quality of the briefing by the parties . . .
  . The quality of the briefing is unacceptable
  prolonging the litigation process further . . .
  . Each partys brief is littered with
  typographical errors. Carelessness can have a
  dramatic impact on the claim . . . .The quality
  of work, from both parties, is worse than simply
  careless or sloppy. It is sanctionable.
• Patterson v. Cook County, 2005 WL 433321 at 5

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The small stuff, cont.

• Mr. Puricellis written work is careless, to the
  point of disrespectful. The Defendants have
  described it as vague, ambiguous,
  unintelligible, verbose and repetitive.
  citation omitted. We agree . . . . Mr.
  Puricellis filings are replete with
  typographical errors and we would be remiss if we
  did not point out some of our favorites.
  Throughout the litigation, Mr. Puricelli
  identified the court as THE UNITED STATES
  DISTRICT COURT FOR THE EASTER sic DISTRICT OF
  PENNSYLVANIA. Considering the religious
  persuasion of the presiding officer, the
  Passover District would have been more
  appropriate . . . . Mr. Puricellis complete lack
  of care in his written product shows disrespect
  for the court. His errors, not just
  typographical, caused the court a considerable
  amount of work.
• Devore v. City of Philadelphia, 2004 WL 414085 at
  2-3

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For next time

• Questions Presented
• Statements of the Case
• Summary of the Argument