PRACTICE TIPS By: Summer H. McMillan Senior Law Clerk, Tennessee Supreme Court
Hon. Gregory S. McMillan
Knox County Circuit Court, Division IV
IT’S THE BRIEF, STUPID You’ve all heard the phrase, “It’s the economy, stupid.” I’m not calling names, but the title did get you to read this far. Justice Ruth Bader Ginsburg once said, “As between briefing and argument, there is a near-universal agreement among federal appellate judges that the brief is more important––certainly it is more enduring. Oral argument is fleeting––here today, it may be forgotten tomorrow, after the court has heard perhaps six or seven subsequent arguments.”1 That makes tremendous sense to me, even though I can only speak from the perspective of a former litigator turned judicial law clerk. You get only minutes to present your oral argument on appeal. Your brief is front and center from start to finish. Justice Thurgood Marshall put it this way: It is the brief that does the final job, if for no other reason than that the opinions are often written several weeks and sometimes months after the argument. The arguments, great as they may have been, are forgotten. In the seclusion of his chambers, the judge has only his briefs and his law books. At that time your brief is your only spokesman.2 Also, of course, at oral argument the court will ask questions, which causes your presentation to depart from the logical, linear, and organized legal argument you probably rehearsed a few times (in the car, in the shower, wherever). The brief is your only real chance to make that complete presentation of your case, uninterrupted. So, the brief must give the best possible impression of your case. It should go without saying that you must proofread, proofread, and proofread again. We all make typos and other mistakes, but it just looks so sloppy when they make it into the final draft of something as important as an appellate brief. And it happens a lot more than you would think. The substance of the brief can be even more problematic if you mischaracterize the evidence or the case law you use to support your arguments. In some cases, the court expresses its displeasure in the opinion itself. For example, in Keylon v. Hill, a 2003 medical malpractice case, the defendant asserted that the trial court should have disqualified the plaintiff ’s expert witness for relying on a national standard of care rather than the standard of care required by the statutory locality rule. The appellate court quoted at length from the expert’s testimony and found that he had based his opinions on the standard of care in the local area where the defendant practiced. The appellate court took the defendant’s attorneys to task: “At the outset we note that the [defendant’s] brief takes undue liberties with the art of advocacy by the mischaracterization of testimony and the non-contextual recital of selected segments. The difficulties attendant upon such practices are self-evident and the practice is never productive.”3 November 2020
In In re Isabella W., a termination of parental rights case, the court found that the father’s brief mischaracterized the record by stating that he had sent the juvenile court clerk’s office a letter informing the court he was firing his attorney and therefore the juvenile court should have granted a 90-day extension for him to hire a new attorney. But there was no such letter in the record, and the hearing transcript did not contain any indication that the father told the court he had fired his attorney. The court deemed the issue of a 90-day extension waived because it was not raised in the trial court, but not before bringing attention to the brief––complete with a block quote of that section of the argument––for mischaracterizing the facts in the record. 4 It is no less egregious to mischaracterize case law. In State v. Walker, the defendant’s brief misstated the holding in a case, claiming that “it is settled case law in . . . Tennessee that general on-the-scene questioning and the performance of field sobriety tests before arrests are made admissible into evidence.”5 The court not only found that the defendant’s reliance on the case was misplaced, but also noted that the defendant’s attorney had “misstated the issues and holding” in that case which did not even address the admissibility or validity of roadside sobriety tests.6 There are plenty of other examples of cases in which appellate opinions have brought attention to attorneys for mischaracterizing evidence or the law, but space does not permit including them here. In the examples above, the courts have made it clear that the appellate brief represents not only your client’s position in the litigation, but also your credibility with the court. Justice Ginsburg also noted that she had “seen few victories snatched at oral argument from a total defeat the judges had anticipated on the basis of the briefs.”7 Don’t let your brief give the court low expectations for your case.
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DICTA
Ruth Bader Ginsburg, Remarks on Appellate Advocacy, 50 S.C. L. Rev. 567, 567–68 (1999). Nancy Winkelman, “Just a Brief Writer”?, 29 No. 4 Litigation 50 (quoting Thurgood Marshall, “The Federal Appeal,” in Counsel on Appeal, 139, 146 (Arthur A Charpentier ed. 1968). Keylon v. Hill, No. E2003-010540COA-R3-CV, 2003 WL 22927143, at *7 (Tenn. Ct. App. Dec. 11, 2003). The Keylon court also called attention to the defendant’s answer to the complaint, which “den[ied] all allegations of negligence and ‘demand[ed] strict proof thereof.’” Id. at *2. The court stated that it found “nothing in the Rules of Civil Procedure which, even by inference, provides that an allegation may be denied while concurrently demanding ‘strict proof thereof.’ Presumably this anomaly is a remnant of equity practice no longer viable.” Id. at *2 n.1. In re Isabella W., No. E2019-013346-COA-R3-PT, 2020 WL 2070392, at *7–8 (Tenn. Ct. App. Apr. 29, 2020) State v. Walker, No. 02-C-01-9411-CC-00258, 1995 WL 276005, at *5 (Tenn. Crim. App. May 10, 1995). Id. Ruth Bader Ginsburg, Remarks on Appellate Advocacy, 50 S.C. L. Rev. 567 (1999).
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