Winter 2011

By Kimberly Jones

A plethora of resources are devoted to answering the question of how to avoid irritating the judiciary. However, there is another group of individuals who dedicate most of their working hours to reviewing and analyzing your briefs — the staff attorneys and law clerks of the appellate courts. In some courts, these lawyers are the front line of review for your arguments and enjoy the unique opportunity of closely assisting the judges in resolving the case.

According to Justice Scalia, “In my chambers, at least, my law clerks are the principal people with whom I discuss a case …  Where I really hone my view of the case is in discussions with my [four] law clerks, each of whom should know the case four times better than I do because … each one of them is assigned just one-quarter of the cases.”1 For Justice Stevens, his law clerks’ “job is to prevent [him] from looking like an idiot.”2

Given the view that the job of a law clerk is to protect their judge by knowing the assigned case better than the judges deciding it and the lawyers arguing it, law clerks devote their working hours to scrutinizing your briefs, dissecting your arguments, and verifying your legal authority. During this process, the law clerk sometimes uncovers mistakes or decisions by counsel that cast doubt upon the quality and credibility of a legal argument. The following is a compilation of grievances revealed through an informal survey of the staff attorneys and law clerks of the Florida appellate courts. Although it may come across as a preachy rant from the ivory tower of no billable hours, I hope it can provide some guidance into simple ways to avoid irking a law clerk. Furthermore, as some of the law clerks surveyed expressed, this list of pet peeves is likely inapplicable to the talented and conscientious appellate advocates who are reading The Record. (Yes, some clerks really did say that.) Rather, think of this as an education into what the rest of the appellate lawyers do to drive the law clerks crazy.

  1. Be Reader Friendly
    In school, we learn that fancy report covers can set your work product apart as professional. In the appellate courts, however, those fancy report covers and special binding generally find a one home—the trash can. You can save your client money and a law clerk some time by sticking to the simple methods of binding discussed in the appellate rules.3 A staple at the top corner of your brief works remarkably well.In addition, an appendix is a useful tool to the Court that can easily become a hassle. In other words, refrain from attaching a long appendix to your brief. A 100-plus page brief and appendix bound together is not easy to read. If your combined brief and appendix results in a stack of documents larger than The Bluebook, bind and submit it separately. Likewise, do not bind your appendix in a way that makes it totally impossible to read “unless you have the strength of The Situation to hold it open,” such as an ACCO Binder across the top of the document. Also, be kind and make it easy for the law clerk to find the order on review by placing it at the beginning of the appendix, rather than at the very bottom.In some circumstances, such as when you have a very lengthy record, it can be extremely helpful to separate out the key documents on review and submit them in an appendix. This assists the Court in easily retrieving the important documents while reviewing your case. Furthermore, if you cite to a circuit court or county court order or opinion, some courts do not have access to these documents on Westlaw or Lexis. The subscription to these services at the state appellate courts is limited. Accordingly, help a law clerk out by attaching any legal authority that is not published in the commonly used reporters in an appendix. The clerks will greatly appreciate this simple act.
  2. We Are Paid to Read What You Write
    Law clerks often criticize counsel for failing to represent legal authorities in an intellectually honest way by inaccurately summarizing or misrepresenting a case in an effort to mislead the Court. Basically, you are better off not making bogus arguments or attempting to be sly because you will be caught. This seems elementary, but it happens often enough that many law clerks wonder whether appellate attorneys actually believe the Court lacks the insight to realize that the authority presented does not support the proposition advanced.The majority of the law clerks surveyed repeated this sentiment. Law clerks want you to realize that they will read your argument closely. They will read the record, and they will read the authority that you cite. As one staff attorney said, “Our jobs depend on us presenting things clearly to the judges. We like getting paid for a living. I like having the ability to buy groceries. So we will follow these arguments back to the record or cited authority because our necks are on the line if we fail to spot such efforts to mislead, confuse, or obfuscate the judges.”If an attorney deliberately makes a convoluted argument in an effort to confuse the Court or the issues, it has an impact on his or her credibility. For example, in one recent case, counsel devoted multiple pages of a brief to presentation of an argument regarding an amendment to certain rules. After the staff attorney carefully read all of the rules and amendments, it was clear that the rules were indeed amended, but the amendment was to a subdivision in those rules that was totally unrelated to the subdivision at issue in the case. Thus, three pages of counsel’s “detailed research” into these rules and the related arguments were totally meritless and “actually offensive.”Furthermore, if you quote from an opinion other than the majority opinion (e.g., a concurrence), you must make it clear in your brief that you are quoting from a non-majority opinion. As one law clerk responded, “If I do not discover that you are giving me dicta rather than holding until I read the case, I will be [ticked]. Yes, this just happened 30 seconds ago.”The moral of this story — law clerks always read the cases that you cite, and know when you are misrepresenting the law. You can try to misstate the law in the hopes that your opposing counsel will not notice, but it is doubtful that you will get past the scrutiny of a law clerk.
  3. Cite Right!
    It seems so simple to avoid, but one of the most frequent complaints of law clerks is the failure to use proper citations to legal authority. In the rush to complete a brief, it is easy to sacrifice proper citation when your main priority is presenting your legal argument. In addition, some of the computer programs that are supposed to magically create the table of authorities seem determined to make your citations look sloppy.However, it is one of the first ways to make a law clerk doubt your credibility. For example, if you omit the designation for a Florida district court, which is easy to do and happens frequently, it looks like you are citing Florida Supreme Court authority. When the clerk pulls up the case to discover it is not from that court, generally every other citation in your brief will be checked again for accuracy and to ensure that you are not misstating the binding authority of a decision. During my time as a staff attorney, I often found that the culprit for most incorrect citations was copying and pasting a citation from Westlaw or Lexis, which do not follow the format prescribed by Florida Rule of Appellate Procedure 9.800. When doing so, remember to check that the court designation follows the appellate rules and that you include the name of the correct court.Furthermore, despite its tedious nature, inclusion of a pinpoint citation (“pincite”) is very important.4 Some attorneys may erroneously assume that the appellate court does not check the veracity of each proposition in a brief, but this is often the task of a law clerk. As one clerk stated, it is frustrating and time consuming to hunt through a seventeenpage opinion for a minor proposition when no pincite is provided.In addition, it is important to double-check your page numbers, because the law clerks certainly are. When numbers are transposed or inadvertently incorrect, a law clerk spends a great deal of extra time correcting these citations. In some courts, it is the responsibility of the law clerk to check the accuracy of every citation in a brief and to note in bold typeface any corrections of these citations for the judges. In these circumstances, the appellate judges become aware of each instance where your citations are incorrect.Also, use block quotes sparingly. Law clerks cringe at an argument that merely consists of a series of block quotes interspersed with a few connecting sentences. This method of legal writing is neither effective nor convincing because it fails to demonstrate how the law applies to the facts of your case. Block quotes are best used when the language presented is pertinent and you could not summarize the premise in a concise fashion. In addition, readers tend to glaze over lengthy block quotes, which can diminish their impact for your argument. With many attorneys struggling to stay within the page limits, omission of unnecessary block quotes is an easy way to slim down your brief.
  4. Be True to the Record
    I cannot stress enough how important it is to accurately cite to the record. This pet peeve, which was raised by the majority of survey respondents, includes the failure to accurately cite to the record and the absolute failure to cite to the record at all. Although law clerks generally have the luxurious benefit of a bound and prepared record on appeal, it should not be a scavenger hunt to locate and verify the fact you are presenting. For example, some judges require their law clerks to include a record cite for every fact in the summary of the case prepared by the law clerks. A brief that follows this rule is of great value to a law clerk. Furthermore, failure to cite to the record could result in the Court striking your brief for failure to adhere to Florida Rule of Appellate Procedure 9.210(b)(3).5Likewise, please make sure that you are representing the record accurately, because the clerks will be checking the veracity of every single one of your statements. When a brief cites to a document in the record that does not support the fact presented, it is likely that this discrepancy will be pointed out to the Court and possibly questioned during oral argument.
  5. Go Green—Be Brief
    We have all been cautioned that briefs should be the epitome of brevity and that the page limit is a guideline, not a goal. With this understanding, it is unnecessary to rehash the opposing party’s argument in either the answer brief or the reply brief. For example, the following is a waste of space: “Appellant contends [insert long quote from initial brief] (Initial brief, p. 8), but we believe [insert sly insult of appellant.] Appellant also argues [insert long quote from initial brief] (Initial brief, p. 9).” To some law clerks, this method of legal writing insinuates that the attorney believes that the clerks do not read the briefs, as discussed above. It is the law clerk’s job to know what each party is arguing. Their responsibilities include reviewing the opposing arguments to compare the merits of each side. Therefore, you do not need to waste your page restrictions telling the clerks the exact wording of opposing counsel’s argument. As one staff attorney explained, “Please don’t insult our intelligence.”Likewise, it is completely unnecessary to recite pages of facts that are irrelevant to the issues on appeal. For instance, please save some paper and omit the lengthy discussion on jury selection if you are not raising any issues regarding it. Or vice versa—if the issue is limited to jury selection, please do not explain every detail of the trial. Such verbosity is either (1) just a waste of everyone’s time and effort, or worse, (2) an attempt to influence the Court based on the equities of the case rather than the merits of the issue on appeal. Furthermore, it looks sloppy and lazy to copy a large portion of the statement of the case and facts into the argument section instead of simply applying the pertinent facts to the law.You also do not need to repeat the same proposition over and over and over again. We understand the rules allow you to use fifty pages, but very few cases require that. As is often repeated in reference to appellate writing, it’s called a brief for a reason.
  6. But Don’t Be Lazy
    Despite the above warnings, it is essential that you present your arguments in the brief for your case. Attempts to incorporate an argument by reference to the proceedings in the lower court or to the briefs in another case are futile derelictions of your responsibility.6 “The purpose of an appellate brief is to present arguments in support of the points on appeal. Merely making reference to arguments below without further elucidation does not suffice to preserve issues, and these claims are deemed to have been waived.”7 Furthermore, the Florida Supreme Court has held that it is “impermissible under any circumstances” to attempt to crossreference a brief from a separate case because “it may confuse factually inapposite cases, it leaves appellate courts the task of determining which issues are relevant (which is counsel’s role), and it circumvents the pagelimit requirements.”8 Accordingly, the Florida Supreme Court held that “the proper method of bringing relevant matters before this Court that are contained in separate records of pending cases is by way of a motion to supplement the record, not by a request for the taking of judicial notice.”9 Any attempts to cross-reference separate records on appeal in pending cases can result in those portions of your brief being stricken.10Despite the clear prohibition against this practice, some lawyers still attempt to incorporate arguments or facts by reference to extrinsic briefs and records. Doing so will only result in those portions of your brief being stricken, or worse, your claim being denied.
  7. The Last Word
    Another frequent complaint of staff attorneys is when an attorney attempts to slip an argument into a case at a point when the opponent does not have the opportunity to respond, and counsel is not permitted to do so, such as in the last brief filed in a case. From one law clerk’s perspective, “such acts are desperate last ditch attempts to slip something in unfairly. The Court does not buy them.” Furthermore, do not use the reply brief as an attempt to merely reiterate points in the initial brief. This is just another senseless killing of trees and a waste of the Court’s time. Also, please remember to follow the Florida Rules of Appellate Procedure (i.e, you are not authorized to file a cross-reply unless you file a cross-appeal).
  8. This Is Not Judge Judy’s Courtroom
    An appeal should not be an opportunity to make personal attacks on the opposing party. You do not come off as clever by slipping in a snide, offhand comment about your opposing counsel. As one staff attorney explained, “This is not a jury filled with laypeople. We know you have some issues with the opposing side because if you didn’t, you would not be in this Court appealing a contentious decision from the lower court.” Law clerks much prefer to read an argument that sticks to the facts of the case. Please avoid grandstanding like a trial lawyer, or using underhanded trial tactics, such as filing a baseless motion to strike a brief. As another law clerk succinctly stated, “When I see personal attacks, I assume you can’t win on the merits so you are resorting to mudslinging.”
  9. The Final List
    This article will not elaborate on some of the most simplistic errors made by appellate lawyers because, as one staff attorney stated, the people who are reading it “are not the people who need common sense knocked into them.” Accordingly, let it be known that any of the following will also instantly cause a staff attorney to doubt the quality of your brief and consequently the quality of your legal argument:

    • Unintelligible, incoherent, or incomprehensible writing;
    • Failure to proofread or pay attention to details (“If I see that they took the time to get the little things right then they probably got the major things right too.”);
    • Failure to use proper grammar, punctuation, and citation (“A poorly written brief poorly conveys the party’s position.”);
    • Ignoring the Florida Rules of Appellate Procedure;
    • Attempts to circumvent the page requirement (i.e., putting the majority of your argument in singlespaced footnotes – in some courts, your footnotes are only going to be removed and placed in the body of the argument anyway);
    • Failure to include the proper standard of review, or the basis for timeliness, jurisdiction, or preservation;11
    • Alternatively, the failure of an appellee to address these issues if they are raised in the initial brief;
    • Failure to find relevant, controlling, and easily accessible precedent. If the law clerk finds precedent that you missed, it makes the clerk question all of the analysis provided in your brief;12
    • Failure to cite to any legal authority, such as making broad legal assertions with no precedent to back it up;
    • Failure to cite to more recent cases for the same legal proposition — if the decision is from 1910, find something closer in time to this decade;
    • Not applying the facts of your case to the opinion/statute/rule you are citing;
    • Failure to develop legal arguments;
    • Failure to identify the remedy or relief sought;
    • Failure to understand the issue (e.g., raising the issue as one thing but arguing something completely different or incorrect);
    • Raising a novel issue, b
    • ut failing to support it through caselaw or logic (i.e., making the law clerk do the research for you);
    • Inviting the appellate court to reweigh the evidence by advancing conflicting evidence that the trial court rejected and ignoring or attempting to discredit evidence the trial court accepted without objection;
    • Filing frivolous appeals;13 and
    • Failing to concede error when it is appropriate to do so.
Kimberly Jones is an associate at Phelps Dunbar in the firm’s regional insurance and reinsurance practice group. Prior to joining the firm, Kimberly was a senior staff attorney for the Honorable R. Fred Lewis at the Supreme Court of Florida, and a staff attorney for the Honorable Chris Altenbernd at the Second District Court of Appeal. She is the Chair of the Self-Represented (Pro Se) Litigant Committee and is a member of the Executive Council of the Appellate Practice Section.
1 In the Opinion of Justice Scalia, LegaL Times (March 11, 2008), jsp/article.jsp?id=900005560669 (last visited Oct. 28, 2010).
2 NiNa ToTeNberg, Justice Stevens: An Open Mind On A Changed Court, NPr (Oct. 4, 2010), php?storyId=130198344 (last visited Oct. 28, 2010).
3 See, e.g., Fla. R. App. P. 9.210(a)(3), 9.220(b).
4 See The bLuebook: a uNiform sysTem of CiTaTioN R. B4.1.2, at 9 (Columbia Law Review Ass’n et al. eds., 19th ed. 2010).
5 See R.E. v. Dep’t of Children and Families, 996 So. 2d 929, 930 n.1 (Fla. 4th DCA 2008); Williams v. Winn-Dixie Stores, Inc., 548 So. 2d 829, 830 (Fla. 1st DCA 1989).
6 See Beasley v. State, 18 So. 3d 473, 481 n.3 (Fla. 2009).
7 Duest v. Dugger, 555 So. 2d 849, 852 (Fla. 1990); see also Coolen v. State, 696 So. 2d 738, 742 n.2 (Fla. 1997) (stating that a failure to fully brief and argue points on appeal “constitutes a waiver of these claims”).
8 Johnson v. State, 660 So. 2d 648, 652 (Fla. 1995).
9 Id. at 653 (footnote omitted).
10 See id.
11 Wilson By and Through Wilson v. Duval County School Bd., 436 So. 2d 261, 263 (Fla. 1st DCA 1983).
12 See Fuller v. State, 867 So. 2d 469, 470-71 (Fla. 5th DCA 2004) (“We assume that the State’s failure to cite two cases directly on point, one of which is a controlling decision of this court, was an oversight. We express our sincere hope that the State might be more helpful in focusing the court’s attention on controlling case law in the future, especially where, as here, the Appellant is pro se.”)
13 SeeWalkerv.State,579So.2d348,350(Fla. 1st DCA 1991) (“We caution counsel and pro se litigants that we will not hesitate to sanction persons who initiate frivolous appeals. See Fla. R. App. P. 9.410.”)