Appellate Insights

It can be tempting to write that the other side’s brief “conveniently ignores” a point, or “tries to distract the court,” or “engages in sleight of hand, hoping the court will ignore ….”  Resist the impulse.  Judges have been saying for years that such accusations never persuade, and usually hurt the brief.

• Lawyers cannot actually know opponents’ thoughts, so these comments just sound presumptuous.

• They’re also cliché.  Trial court judges see these accusations every day, and appellate court jurists see them with depressing frequency.

• They distract from your substantive argument, pulling court readers’ attention onto points you cannot “win.”

• Worse, no jurist wants to feel they’re deciding a case on anything but the merits, so this material hinders your work for your client.  For example, if the other side actually ignored your argument, just say that, and remind the court why the argument matters.

 The practical message:  Stick to the client’s core need, and courts’ preferred path: persuade on the merits.  If motive-commentary slips into a draft, eliminate it.