This article was originally published in the Cleveland Metropolitan Bar Journal in March 2022 and is reproduced here with the permission of the Cleveland Metropolitan Bar Association. The full issue of the journal as well as previous issues can be found here.

Many lawyers enter law school and law practice with a touch of imposter syndrome — at least, I did. Do I really deserve to be here? Will I ever be able to spot issues as quickly as the partners do? Will I ever understand International Shoe?

In the face of that anxiety, adopting legalisms and jargon offer a way to fit in: the comfort of familiar forms and a way to say, “I know the secret handshake.” That most of the cases in casebooks are decades old — from a time when flowery writing and flaunting vocabulary was in vogue — doesn’t help. These opinions leave the impression that, to belong, a lawyer must adopt foreign languages, run-on sentences, and opaque phrasing.

But legalese and jargon don’t suggest confidence; they often betray insecurity and lack of experience. The best legal writers strive to make their briefs understandable to lay readers as well as practitioners.

How do they do it? Here are a few simple suggestions:

Omit Needless Words (Especially Adjectives and Adverbs)

The writing guides are unanimous on this point: Howard Zinsser (“We are a society strangling in unnecessary words”); Strunk and White (“Omit needless words”); even George Orwell (“If it is possible to cut a word out, always cut it out.”). But what words are needless?

For one thing, empty modifiers like “clearly” or “very” add nothing to your point in 99.9 percent of cases. For another, adjectives and adverbs more generally are often redundant; they can be replaced by more vivid nouns or verbs. For example, replace “yelled loudly” with “raged” or “ranted.” Or replace “extremely cold” with “frigid.”

Using active voice also helps: It takes fewer words to say “Bob kicked John” than “John was kicked by Bob.” In general, though, it is a matter of proofreading and asking if there is a more concise way to make your point.

Avoid Latinisms

Lawyers like law Latin, but even they often must look it up. Cut out the middleman and state canons of construction in plain English (with the Latin in parenthesis if you must). Drop Latin logical operators like “a fortiori,” which beyond being unnecessary also carry the risk of being misused. And so on.

Unless there is no English alternative —as with habeas corpus or res judicata — there is really no reason to exhume dead tongues for a legal brief.

Prefer Simple Words to Pretentious Ones

Heretofore (just cut it), thereto (there), hereto (here), prior (before), subsequent (after), previous (before), promote (push), constitute (make up), individual (person), liquidate (trash, destroy). All these words — and many, many others — have shorter, simpler alternatives (see parentheticals for examples). Use them.

Eschew Stale Phrases

Finally, lawyers sometimes snatch a clever turn of phrase from something they read (usually a judicial opinion) or reach for a stale cliché to make their briefs more “colorful.” In general, don’t. Clever phrases, like “Congress doesn’t hide elephants in mouseholes” or clichés like “make a mountain out of molehill” are overused.

That said, if you can think of an analogy that is specific to your case and aids in understanding, you should use it.

Or as Orwell wrote in Politics and the English Language: “A newly invented metaphor assists thought by evoking a visual image ....” But “worn-out metaphors which have lost all evocative power ... are merely used because they save people the trouble of inventing phrases for themselves.” He also helpfully cites several examples to avoid, including “take up the cudgel for” and “toe the line.” In fact, if you have a few minutes, the whole essay is worth a read.

Conclusion

In short, the first rule of good brief writing is: Good legal writing is just good writing.

Law school introduces us to a new way of thinking and looking at the world. Those skills are critical, not least of all because they are how we earn a living. But remember: law school isn’t designed to train good writers. For that, we must look elsewhere.

Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.

If you liked this article or have thoughts about it, please like or comment below (or email me at breese@flannerygeorgalis.com) and consider sharing it with your friends and network.

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This article was originally published in the Cleveland Metropolitan Bar Journal in October 2021 and is reproduced here with the permission of the Cleveland Metropolitan Bar Association. The full issue of the journal as well as previous issues can be found here.

Like Pentagon staffers, lawyers are famous—or, more aptly, infamous—for acronyms, defined terms, and jargon. "Defendant Jane Smith ('Defendant');' a typical sentence in a brief might read, "was arrested by agents from the Federal Bureau of Investigation ('FBI') for violations of the Computer Fraud and Abuse Act ('CFAA'):' One sentence, but three defined terms readers must carry in their head for the rest of the brief (and that isn't even touching on the use of passive voice). There is a better way.

Parties

Let’s begin with the most important actors in any case: the parties. Attorneys often like to refer to the client or the opposing party or both by their role in the litigation: Defendant, Plaintiff, Appellee, Appellant, Petitioner, Respondent. And—having lived the case from start to finish—that is easy for the brief writer do and understand.

Not so for the reader. Every time a judge or law clerk encounters one of these words she must (even if only for a second) stop and ask: "Who is the Defendant in this case again?"

Much better to use names. So in the example above, "Defendant" becomes "Smith." Which is not to say that you should never refer to a party’s role after the first paragraph. As the district court judge I clerked for taught me, you should include it with the name every so often (e.g., "Defendant Smith"), just as a reminder. But not every time and certainly not alone. (A side note: Don't use names for your client but a party role for your opponent. Using your opponent's name is a basic sign of respect. Trying to depersonalize them with a title is petty and no judge has ever been persuaded by it.)

You might also use party roles where you must refer to a group of parties, such as several defendants, and no other descriptor will do. That, though should be a last resort. If you can group the parties in other ways—e.g, as banks, grocers, retailers—you should.

Lastly, before we move on: There is no need for a parenthetical definition when you use party names as I suggest, unless there is some potential for confusion. If there is only one "Smith" involved in the case, you can drop the first name from the second mention onward, no parentheses necessary. Your reader will get it. Trust them a bit.

Organizations

What about organizations? Generally, you should follow a similar rule: adopt an easy-to-remember shorthand. Preferably one that doesn't require the reader to create a key.

Which means you should eschew acronyms wherever possible. Refer to First National Bank as "First National" or "The Bank,” not as "FNB." While it is true that the acronym is shorter, that is its only virtue. The other options help the reader by eliminating the need to flip back to the lop of the brief to remember what anacronym means. Your brief shouldn't need a decoder ring.

Of course, every general rule has its exceptions. Some acronyms are so well-known that you should not only use them, but you also don't have to define them. FBI, CIA, NSA: Everyone knows what those acronyms stand for. In fact, a brief that defines them risks sounding pedantic—as if you are suggesting the reader might not know what "CIA” means.

These acronyms are the exception that proves the rule.

Statutes

And that leaves statutes. You can probably guess what I have to say.

If you can avoid an acronym, do it. Where there is only one statute involved, referring to it as "the Act" is preferable (though, in this case, you might use a parenthetical definition). "Section XYZ" is another option.

But I must also admit that this is an area where acronyms may be unavoidable. If so, use as few of them as possible. And try to keep them simple.

In the end, that is what all this advice boils down to: clarity and simplicity. Natural language, names, and phrases help the reader stay oriented. They keep the reader engaged in the story your brief is trying to tell. That is why your favorite fiction author uses the main character's name instead of referring to her as "protagonist" throughout the book. Defined terms and acronyms—by making the reader stop to remember what you are talking about (however briefly)—break that flow.

As for jargon, well, that is a problem for another column.

Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.

If you liked this article or have thoughts about it, please like or comment below (or email me at breese@flannerygeorgalis.com) and consider sharing it with your friends and network.

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Rules about grammar and good writing exist for a reason. Writing, after all, is a means of getting a thought from one brain to another—sometimes across decades or centuries—through a common set of symbols. (Pause for a minute to consider how amazing it is that is even possible and how much we take it for granted.) That thought-sharing process only works if we all agree to a set of conventions on how the symbols we use work.

But rules, as they say, are meant to be broken. And while no one should write a brief in Wingdings, a slight deviation from the norm can break up the monotony and add a spark to your writing.

How to Break the Rules

What are some examples of “good” rule breaking? Consider these:

Use a Sentence Fragment

A complete sentence has, at minimum, a noun and a verb. And any sentence that doesn’t is not a proper sentence. But there are times where using a sentence fragment can add verve or a dash of color to legal writing.

One place is where you are transitioning from stating an argument to responding to it or from describing a case to applying it:

• “Defendant Officers argue that they are entitled to summary judgment because everyone agrees the officer acted reasonably here. Mr. Smith had a gun on his person, so—they say—everything they did was justified.

  Not so. While Mr. Smith’s gun may have justified some precautions, it did not justify the amount of force the officers used.”

• “Our recent decision in Octane Fitness arose in a different context but points in the same direction. In that case we considered § 285 of the Patent Act, which allows district courts to award attorney's fees to prevailing parties in “exceptional” cases.  The Federal Circuit had adopted a two-part test for determining when a case qualified as exceptional, requiring that the claim asserted be both objectively baseless and brought in subjective bad faith. We rejected that test on the ground that a case presenting “subjective bad faith” alone could “sufficiently set itself apart from mine-run cases to warrant a fee award.” So too here. The subjective willfulness of a patent infringer, intentional or knowing, may warrant enhanced damages, without regard to whether his infringement was objectively reckless.”1

Balderdash. Not so here. Exactly. Too true. Very true. There are many examples. Of course, if you want, you could do away with the fragment by substituting a colon for the period. It all depends on how pointed and brisk you want to be.

Another way to use a fragment, and a personal favorite of mine, is to emphasize that a long list of facts is only meant to provide examples:

• “The investor plaintiffs based their allegations on, among other things, the Parent Bank's regulatory filings from 2006, which touted its ‘conservative underwriting standards that include evaluation of a borrower's debt service ability’ and internal underwriting process. They also pointed to a 2007 filing by the Parent Bank that boldly asserted: ‘We expect that our historically conservative credit standards and relatively low loan to values will keep our loss experience well below industry averages.’ Even more boldly, the Parent Bank issued an April 2007 press release that included this statement by the company's CEO, Alfred Camner: ‘[O]ur levels came in better than we projected last quarter. This is because of our conservative underwriting. We do not engage in subprime lending and, as a portfolio lender, we treat each loan as if it is our own.’ And so on.”2

Passive Voice

Passive voice, in most cases, is a problem—not least because it is tough to define. You speak in passive voice if you make a verb’s object (the thing being acted on) the subject of a sentence. So for example: Mistakes were made by him. By contrast, active voice makes the actor the sentence’s subject: He made mistakes.

Using passive voice often bogs down writing, both because it often requires more words and because the reader has to wait to know who the actor is. So—all else being equal—you should write in active voice.

But there are reasons not to.

For example, many appellate judges will write in passive voice to avoid casting aspersions on a trial court judge. “Granting the motion was an error” is softer than “the trial court erred by granting the motion.” You, too, can use passive voice as a means of creating distance between action and actor.

More often, passive voice is effective where the object is more important than the actor. So, in a criminal case, “Mr. Smith was arrested” usually makes more sense than “the police arrested Mr. Smith.”

Contractions

Good legal writing is conversational, but not like a conversation between buds over a beer. It should sound like you when you are explaining an argument to your boss.

Using contractions in formal writing can make it seem too chummy or folksy. So there is some merit to the general rule that writers should avoid them. But not always. Sometimes not using contractions is distracting and sounds too stiff. The occasional contraction here or there isn’t a crime.

Fake Rules

While we are on the topic of rules, there are some writing canards that people insist on enforcing even though they have no basis in … well … anything. You should feel free to ignore these. And I’ve provided citations to writing manuals—indeed, perhaps too many citations—in case your supervisors object. (God speed if you can’t convince them.)

Split Infinitives …

… are fine.3 Mr. Spock’s mission was to boldly go where no one had gone before, not boldly to go there or to go there boldly. Use your writer’s ear and stick with what sounds natural. It is often more distracting to avoid a split infinitive than it is to use one.

Starting Sentences with And or But

Do it.4 It makes your writing flow better, draws connections between sentences, and builds a sense of momentum. You’ve probably noticed I’ve done it quite a few times even in this piece.

One Sentence Paragraphs …

… can be a good way to emphasize a key point.5 Enough said.

Ending a Sentence with a Preposition

It is okay to do it every now and then, especially when the alternative is an awkward turn of phrase.6

Write in Second Person

It sounds a lot more natural than saying “one would” or “one should,” or some equally stilted phrasing.7 Of course, overuse can seem to chummy and like you are telling the reader what to do (never a great idea when you are talking to a judge). But that just leads to the next point.

Rules About Breaking Rules

All of this does not mean you should break rules with reckless abandon. Rules (the real ones, anyway) are rules for a reason: generally, they make writing clearer and better. So here are some guidelines on when to deviate:

Do It for a Reason

Breaking the normal rule should be a conscious choice, not an accident. If you are going to use a sentence fragment or passive voice or some other non-standard formulation, you should have a reason for doing it. Does it make the writing clearer? Does the alternative sound stilted? Does the rule-breaking emphasize something that would otherwise be easy to miss? If so, consider breaking the normal rule.

If you’re just breaking the rule to be a rebel, its probably best not to.

Do It in Moderation

Breaking a rule here or there makes you seem confident, especially if it is effective. Breaking the rule all the time makes it seem like you don’t know what the rule is. And it removes the freshness and impact a departure would otherwise have.

Don’t Let It Be a Distraction

Every writer has a unique voice, but that voice should not get in the way of the message. If breaking a rule is too jarring, the reader will be thinking about how you wrote instead of what you wrote. Use your own good judgment and, if you are in doubt, it is always safer to stick to standard forms.

Conclusion

In sum, it is okay to break a writing rule every now again—even if doing it would have earned you a rap on the knuckles in high school. So experiment, try new things out, and see what works (within reason). Who says writing can’t be fun?

I owe a special thanks here to Judge Ed Carnes of the Eleventh Circuit and Judge Raymond Kethledge of the Sixth Circuit who, between a clerkship in Alabama and a class on appellate practice at Michigan Law, taught me most (if not all) of what I know about legal writing.

Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.

If you liked this article or have thoughts about it, please like or comment below (or email me at breese@flannerygeorgalis.com) and consider sharing it with your friends and network.

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Anyone who has ever tried to challenge a decision by an Immigration Judge or the Board of Immigration Appeals knows that it is difficult to overturn an unfavorable ruling, even under the best of circumstances. The deferential “substantial evidence” standard, which requires the Court of Appeals to affirm if there is evidence in the record that could support the agency’s decision, is nearly impossible to satisfy in most cases. Indeed, one judge has compared granting a petition for review to finding a unicorn.1

But the Fourth Circuit recently made challenges a little easier, holding that immigration judges have a legal obligation to create a record for appellate review.

Horrific Facts

Miguel Angel Arevalo Quintero was born in El Salvador in 1994 and forced, likely through threats of violence, to join the MS-13 gang as a teenager. Quickly realizing he made a mistake after he was forced to extort money and deliver drugs, he tried to leave the gang. In response, MS-13 members beat him and threatened to kill him, telling him death was the only way out.

In 2013, he decided that he had one other option: leave El Salvador. So Quintero fled to the United States. Once there, gang members continued to send threats over Facebook, asking where he was and saying things like, “we take some time, but we don’t forget.” Petitioner feared MS-13 would murder him if he returned to El Salvador.

He had good reason to be afraid. Two years after his escape, MS-13 members shot, dismembered, and beheaded one of his cousins for trying to leave the gang. More than that, they committed the crime in the open, in front of the cousin’s mother and 11-year-old sister.

Back in the U.S., Quintero supported himself by working construction jobs, but when he became homeless in 2017, he moved into a vacant apartment with three other young people. When police discovered them living there without authorization, all four were arrested and Quintero was turned over to ICE. The government then began removal proceedings.

Quintero sought asylum and protection under the Convention Against Torture. He appeared in immigration court without an attorney to explain why he feared returning to El Salvador. The immigration judge denied his claim.

She found Quintero’s testimony that he left MS-13 not to be credible and found no evidence he was entitled to relief. But her decision included no discussion (except a passing reference in a footnote) of whether Quintero was a member of a social group entitled to relief.

An Obligation to Explain

The Fourth Circuit majority began its opinion by noting that while the standards of review in immigration cases “demand deference, … they do not render [the courts’] review toothless.” It also noted that the Board of Immigration Appeals had assumed that Quintero’s testimony was credible (notwithstanding the immigration judge’s adverse finding), so the Fourth Circuit was required to do so as well.

The panel went on to hold, in keeping with the other Circuits to address the issue, that the immigration judge has a responsibility to develop a record for appeal. It based that conclusion first on the Immigration and Nationality Act’s instruction to “administer oaths, receive evidence, and interrogate, examine, and cross-examine” witnesses. But it went on to say that (as other circuits have held) the duty to develop the record is “an essential requirement of a full and fair hearing” under the due process clause of the Fifth Amendment. So, although this case is nominally a statutory one, there is an “inextricable connection between due process and the statutory protections provided in the [Immigration and Nationality] Act.”

The Fourth Circuit, splitting with several other circuits, rejected the idea that this obligation applied only in pro se cases. (Though, because this case involved a pro se attempt to secure relief, this is arguably dicta.) But the Court did go on to note that the obligation to develop the record is especially important in the pro se context given: (1) the complex nature of immigration law, (2) the disadvantages faced by uncounseled citizens (especially those who do not speak English), and (3) the gravity of the interests at stake. In support, the majority emphasized that noncitizens with counsel were 5.5 more likely to obtain relief from removal.

If the immigration judge fails to develop the record, the majority continued, the reviewing court should presume that the immigrant was prejudiced.

Conclusions Are Not Enough

The panel said that, in pro se cases, immigration judges have a duty to explain hearing procedures and legal requirements in plain English, including by providing guidance on how they may prove the elements of their claim. Immigration judges further have a duty to inquire of and elicit all facts relevant to the immigrant’s claim, and “must be especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.”

The panel explained that this duty is “analogous to and consistent with the duty of federal courts to liberally construe pro se complaints.” The immigration judge thus has a duty to help an immigrant articulate and to consider any potentially viable particular social group supported by the record.

The Fourth Circuit rejected the government’s claim that an earlier Board of Immigration Appeals decision (Matter of W-Y-C & H-O-B) applied in pro se asylum cases. In that case, the Board held that an immigrant forfeited her right to claim asylum in an appeal to the Board based on member ship in a particular social group unless she had made the same argument to the immigration judge. The Fourth Circuit relied on the same challenges faced by pro se immigrants discussed above to reject the government’s argument.

Here, the immigration judge did not probe into or attempt to clarify which groups Quintero might have belonged to. Nor did she try to help Quintero understand what he must do to show membership or ask other relevant questions. More than that, the immigration judge did not include any discussion of social groups in her written decision besides a passing remark in a footnote.

The Fourth Circuit also emphasized that “[i]t is an abuse of discretion for the Board to arbitrarily ignore relevant evidence. … Those who flee persecution and seek refuge under our laws have the right to know that the evidence they present … will be fairly considered and weighed by those who decide their fate.” The immigration judge’s cursory acknowledgment of Quintero’s past sufferings in this case was not enough. Nor was it enough to make a conclusory reference to country conditions that was devoid of any citation to the record.

For all these reasons, the panel granted Quintero’s petition for review and remanded the case to the Board of Immigration Appeals with instructions to send the case back to an immigration judge for further fact finding.

Conclusion

The implications of this case may well extend beyond immigration law. The majority’s invocation of due process rights suggest that litigants before other administrative tribunals may be able to use the ruling to challenge skimpy administrative decisions in other contexts. The majority’s emphasis on the immigration judge’s failure to consider, in her written decision, all of the evidence presented is particularly relevant to other court-like administrative proceedings.

The case is Quintero v. Garland, 19-1904

The panel included Judges Motz, Wynn (author), and Floyd.

Judge Motz concurred separately.

Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.

If you liked this article or have thoughts about it, please like or comment below (or email me at breese@flannerygeorgalis.com) and consider sharing it with your friends and network.

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Note: This is post is not wholly appellate focused, but the principles apply to appellate briefs as well. And some of the best models come from appellate judges.

Imagine you opened To Kill a Mockingbird and read: 

NOW COMES Harper Lee, by and through the undersigned publisher, HarperCollins, and moves this honorable reader to enjoy a fictional story, hereafter referred to as “To Kill a Mockingbird,” about Jean Louise Finch (hereinafter, “Scout”) and her brother Jem Finch (hereinafter, “Jem”) . . .

Unless you are a high-school student required to read on, you would find the nearest library donation box and pitch the book right in.  And yet, every day, lawyers begin trial-court briefs with boilerplate introductions just like that one:

NOW COMES Generic Corporation (hereinafter, “Generic”), by and through undersigned counsel, and moves this honorable court to issue an order granting summary judgment on all the claims raised by Plaintiff John J. Doe (hereinafter, “Doe”) because Doe has established no genuine issue of material fact permitting this case to proceed to trial. 

As you might imagine, judges are not quivering with anticipation to read on.  Worse still, using this formulaic incantation tells the reader one thing for certain:  Whoever wrote this brief spent little time on the opening paragraph, which does not bode well for the next twenty to forty pages.

Fair?  Probably not. 

After all, the attorney was probably using a template his law firm has been using for decades.  And he probably (hopefully) put a lot more care into the “meat” of the brief.  But why file a product that is a turnoff at the start?

—

Lawyers don’t write this way because federal court rules require bland introductions.  For example, the U.S. District Court for the Southern District of New York says only that the memorandum of law supporting a motion must “set[ ] forth the cases and other authorities relied upon in support of the motion, and [be] divided, under appropriate headings, into as many parts as there are issues to be determined.1 The D.D.C. local rules are similarly broad: “Each motion shall include or be accompanied by a statement of the specific points of law and authority that support the motion, including where appropriate a concise statement of facts.”2  And so on.  I know of no district court that requires the standard “now comes” language. And its persistence is odd.

I’m not alone in thinking so.  Brian Garner, legal writing guru and editor of Black’s Law Dictionary, has criticized briefs with introductions like this for being “all middle.”  As he wrote in his 1999 article in Trial, “[i]f you’re writing that way, you’re not thinking about [one of] the most critical parts of the brief: the beginning.”3

—

An effective introduction looks much different. As an example, what if opening of the Generic Corp brief above read like this:

After a night at the bar, John Doe drove onto a ferry operated by Generic Corporation near the center of town.  He’d had more than a “couple beers” and had difficulty stopping, plowing through the ferry’s guardrail and into the river.  Doe sued Generic because the guardrail was not built to withstand impact with a car traveling at 40 miles an hour.  Because Doe has presented no evidence of negligence on Generic’s part, the Court should grant Generic’s motion for summary judgment.

Which brief would you want to read? I’m willing to bet the answer is the second one, even if it won’t win a Pulitzer Prize in literature.

The new introduction strips the key issue to its essentials.  The reader knows what the case is about, why the parties are arguing, and why Generic thinks it should win.  And it isn’t easy to write.

A couple things will help though.

First, spend a lot of time thinking about your argument before you put pen to paper.  William Zinsser writes that “[c]lear thinking becomes clear writing; one can’t exist without the other.”4 And that is especially true for introductions.  It is impossible to compress an argument into a capsule summary until you have a thorough understanding of the facts, the law, and what you want to do with both.  Indeed, it is often easier to write the introduction last (when you have a firmer grasp of your points) instead of first.

Second, strip your argument to its core.  Most issues and most significant briefs will involve nuance and sub-issues.  And you shouldn’t overwrite an introduction that suggests otherwise.  At the same time, though, the introduction is not the place to set out every complexity in the case.  Give the reader the reason you win in the end up front; address the complicating factors in the argument section.

—

You may have noticed a few other things about the second introduction, too:

• The sentences are shorter and written in plain, simple English—not legalese. 

• Party titles (e.g., “plaintiff,” “defendant”) were replaced by party names, which not only make for a better story but are easier to remember. 

• Parenthetical definitions (“hereinafter,” whatever) are gone because they were never necessary.  There is only one Generic Corporation in the case.  No one will be confused if you just shorten it to “Generic.”  If Justice Kagan, unambiguously one of the Supreme Court’s best writers, does not feel the need to use parenthetical definitions, you probably don’t need them either.5

• This brief writer also did not feel the need to tell the court that Generic had a lawyer (“by and through undersigned counsel”).  She trusted the cover page and signature block to do that. 

• And the introduction is concise:  there is not a word to spare.  For a larger or more complex case, your introduction may be several paragraphs long — perhaps even a full page.  But the idea is the same.

These features mark the brief-writer as someone who has spent a long time turning the issues over in her mind.  In fact, I’m willing to bet the rest of the second brief is better than the first, too, because of the time spent developing this simple, elevator-pitch version of her argument.

In a beige expanse of ordinary briefs with the same introduction, this one will likely stand out as a brief that will be interesting and enjoyable to read.  And earning the ear of the reader is the first step to persuasion.

—

If you’re still not persuaded, consider two introductions from recent appellate decisions:

First, Judge Kethledge’s decision in Ackerman v. USDA, 995 F.3d 528:

“To recite the facts in this case is essentially to decide it. The short version is that an agency within the Department of Agriculture summarily approved a proposed plan for dry-bean crop insurance in Michigan based upon the mistaken belief that the terms of the proposed endorsement for the Michigan policy were identical to the terms of the endorsement for a Minnesota policy that the agency had approved the year before. But the terms of the two endorsements were quite different, because the Michigan endorsement contained a different pricing mechanism—for determining the beans’ ‘harvest price’—than the mechanism the agency had approved as part of the Minnesota endorsement. That difference later caused significant harm to Michigan farmers who had purchased the coverage, some of whom then brought this suit. In the district court, the government compounded the agency's mistake when it mistakenly told the district court that the pricing mechanisms in the Michigan and Minnesota endorsements were the same. Based in part upon that representation, the district court granted summary judgment to the government. On appeal, the government's brief unhelpfully elides both mistakes rather than acknowledge them; but Plaintiffs’ counsel on appeal has made the existence of those mistakes clear enough. We therefore reverse in part the district court's grant of summary judgment.”

Then, Judge Thompson’s opinion in Rhode Island v. Shell Oil Products, 979 F.3d 50:

Rhode Island is salty about losing its already limited square footage to rising sea levels caused by climate change. Facing property damage from extreme weather events and otherwise losing money to the effects of climate change, Rhode Island sued a slew of oil and gas companies for the damage caused by fossil fuels while those companies misled the public about their products' true risks.

Because those claims were state law claims, Rhode Island filed suit in state court. The oil companies, seeing many grounds for federal jurisdiction, removed the case to federal district court. Rhode Island opposed removal and asked that the district court kindly return the lawsuit to state court. The district court obliged and allowed Rhode Island's motion for remand.

The oil companies appealed the district court's order to us and a heated debate ensued over the scope of our review.

These introductions not only follow (almost) all the pointers above, they also start off with a snappy (and memorable) opening line. And they prove you don’t have to give up your own style to do it: Though Judge Kethledge’s writing reads much differently than Judge Thompson’s, both leave you wanting to read more.

—

In the end, no court is going to rule against you based on a boring introduction.  But you shouldn’t waste the most valuable real estate on the page just because your filing won’t be rejected if you do.  Start with a bang:  A broken arm, Boo Radley, and Atticus Finch — there is a reason the font credits for the book come at the end.

Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.

If you liked this article or have thoughts about it, please like or comment below (or email me at breese@flannerygeorgalis.com) and consider sharing it with your friends and network.

Most history books that cover McCulloch v. Maryland (see here) focus on Chief Justice Marshall’s explanation for why the Second Bank of the United States was constitutional even though the Constitution does not say Congress can create banks. But the second part of the decision was also critical: The Supreme Court unanimously held that Maryland could not tax the bank, because to do so would undermine Congress’s goals (“the power to tax involves the power to destroy”). Allowing a state to tax the federal government would give each state de facto veto power over the policies adopted by the entire country.

This doctrine of intergovernmental immunity persists to this day. States may not tax or impose liability on the federal government absent Congress’s clear and unambiguous consent.

Why would the federal government ever consent to state taxation or liability? One reason is to avoid having to create duplicative federal systems to handle workplace issues. The federal government is, after all, one of the largest (if not the largest) employers in the United States. So, for example, federal law permits states to enforce their workers’ compensation laws against federal agencies.

That law is the focus of a recent Ninth Circuit decision.

Hanford Nuclear Site

Located in southeastern Washington State, the Hanford Nuclear Site covers more than 500 square miles and, from 1944 to 1989, produced more than two-thirds of the country’s weapons-grade plutonium. Though the site is now decommissioned, the Department of Energy (“DOE” ) has been working to clean up the site since it closed. Properly disposing of the highly radioactive and chemically hazardous waste left behind is expected to last until at least 2080.

To give an idea of the scope of the problem, consider this:

The liquid waste that the site generated—over fifty million gallons—is stored in 177 underground holding tanks, most of which are over seven decades old. The site also produce 270 billion gallons of contaminated groundwater, twenty-five million cubic feet of buried or stored solid waste, 2,300 tons of spent nuclear fuel, and twenty tons of plutonium bearing materials.

Roughly 10,000 DOE contractors work at the site. And those directly involved in the clean up operations obviously face frequent exposure to radioactive substances and hazardous chemicals.

Recognizing that risk, the Washington state legislature passed a new law in 2018 that applied only to Hanford-site workers. This new law provided that the state’s workers’ compensation scheme would assume that, if a Hanford worker contracted certain conditions or cancers, they resulted from working at the site. The federal government could only rebut that presumption by clear and convincing evidence. In other words, for the federal government—and the federal government alone—the burden of proof in workers’ compensation disputes would be flipped.

The federal government sued, arguing that the new law violated the doctrine of intergovernmental immunity established in McCulloch.

A unanimous panel of the Ninth Circuit upheld the law and the whole court refused (apparently by a 24-5 vote) to rehear the case en banc. But Judge Collins and four other judges issued a stinging dissent from the denial of rehearing. Their disagreement began with the text.

Congressional Waiver

As both sides of the debate admit, Congress passed a law subjecting federal agencies to state workers’ compensation laws. So the question in this case was whether that statute allowed Washington to apply different rules to the federal government or merely to apply the same rules that it applies to other, private employers.

The statute in question, 40 U.S.C. § 3172(a), says that:

The state authority charged with enforcing and requiring compliance with the state workers’ compensation laws and with the orders, decisions, awards of the authority may apply the laws to [the federal government] in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State in which the [federal facility] is located.

The disagreement between the judges of the Ninth Circuit focuses on the bolded text.

To the panel, this phrase is about power: It means that Washington can impose liability on the federal government in any way it could impose liability on a private employer. Because states theoretically could impose special workers compensation regimes on specific industries or employers, they can do the same for the federal government.

Judge Collins reads the text quite differently. He argues that the statute is not about power, but rather about practice. Because Washington is not in fact applying its laws against the federal government “in the same way and to the same extent” as against private employers, the waiver in § 3172(a) does not apply. In other words, Congress did not authorize states to discriminate against federal employers. To him, the panel’s reading effectively ignores the phrase “in the same way and to the same extent,” focusing purely on the permission to regulate “as if the premises were under the exclusive jurisdiction of the State.”

Dueling Views of Precedent

And Judge Collins believes the Supreme Court is on his side. He points to the Court’s decision in Goodyear Atomic Corp. v. Miller (see here), which involved an Ohio law that provided additional compensation where a workplace injury resulted from an employer’s violation of a state safety regulation. The Court upheld the law, noting along the way that it applied equally to private and public employers. Indeed, the Court said that “on its face § [3172(a)] compels the same workers’ compensation award for an employee injured at a federally owned facility as the employ would receive if working for a wholly private facility.” Thus, Judge Collins argues, no discrimination is allowed.

The panel acknowledged that troublesome language, but focuses on the Supreme Court’s statement that the § 3172(a) “places no express limitation on the type of workers compensation scheme authorized.” The panel reads this as providing plenary authority to the states to design their workers’ compensation systems as they wish. Concurring in the denial of rehearing, Judge Smith (the author of the panel opinion) contends that the neutrality of Ohio’s law was just a background fact in Goodyear. At worst, he implies, it was dicta because neutrality was not an issue in that case.

Instead, the panels says, the relevant case is United States v. Lewis County (see here), a Ninth Circuit case involving Washington’s decision to tax federal and private property, but not state or local government property. The panel points out that the statute there used the same “in the same manner and to the same extent” language, and yet the Ninth Circuit held that it allowed the “state to make the distinction” between federal and state or local employers. In other words, the panel suggests, the Ninth Circuit has allowed states to treat the federal government differently before.

Judge Collins counters that the panel over reads Lewis County. He stresses that the issue in that case was whether the state must essentially tax itself, and that (given the ubiquitous nature of state-and-local tax exceptions) holding that it must would essentially nullify Congress’s waiver of immunity. But, he points out, the Court in Lewis County stressed that the Washington statute did not discriminate between the federal government and private entities. The new workers compensation law does.

Another Statute

Finally, the panel pointed to different waiver language in CERCLA (the Superfund law) that it believes proves its point. There (42 U.S.C. § 9620(a)(4)), Congress wrote that its liability waiver “shall not apply to the extent a State law would apply any standard or requirement to [federal] facilities which is more stringent than the standards or requirements applicable to facilities which are not owned or operated by the” federal government. Here Congress did not use the same language explicitly prohibiting discrimination, the panel says, so it follows that the waiver is broader and Washington is free to treat the Hanford site differently than other workplaces.

In response, Judge Collins accuses the panel of turning “the governing canon of construction on its head.” In the intergovernmental immunity context, he says, the Court is supposed to ask if Congress provided “clear and unambiguous authorization” of a state practice, not whether it clearly forbade it.

Conclusion

In 1819, holding that Congress could not form a bank or that Maryland could tax it would likely have crippled the federal government or pitched the economy into chaos. (Imagine if, today, we dispensed with the Federal Reserve.) Indeed, economic tumult did follow when Andrew Jackson refused to reauthorize the bank some years later.

Today, allowing Washington to flip a presumption in workers compensation cases that involve 10,000 or so workers (plus those who have retired or left) hardly threatens the federal government with insolvency. But as Judge Collins points out “the fact that the Federal Government in 2021 is large enough to absorb Washington’s substantial financial hit does not in any way justify … betrayal of the bedrock principals established in McCulloch.” If indeed that is what the panel did.

There are also other immunity statutes out there similar to this one, such as the tax statute at issue in Lewis County. So it is tough to say what the larger consequences of the decision will be.

What is certain is that the federal government has until September to file a petition for a writ of certiorari asking the Supreme Court to review the case.

Something New: A Poll

Who do you think got it right? Vote here to voice your opinion:

The panel. (Washington can impose its special rule.)
The dissent. (Washington can't discriminate against the DOE.)
Neither. (I have a different opinion.)

I’ll announce the results with next week’s Last Week in Federal Appeals. If you have other thoughts about the case, please leave them below and start a discussion.

The case is United States v. Washington, No. 19-35673.

The panel included Judges Smith (author), Clifton, and Donato.

Judge Smith concurred in the denial of rehearing en banc.

Judge Collins, joined by Judges Callahan, Bennett, and Bress, dissented from the denial of rehearing

Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.

If you liked this article or have thoughts about it, please like or comment below (or email me at breese@flannerygeorgalis.com) and consider sharing it with your friends and network.

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Justice Breyer is (affectionately) known for his long, and sometimes zany, hypotheticals at oral argument. But he is also the member of the Court most likely to get deeply interested in a complex intellectual property case. (After all, he did write an introduction to the Reference Manual on Scientific Evidence.) So it should come as no surprise that he was the author of the Court’s recent opinion in Google v. Oracle.

But this post isn’t about the merits of that case—at least not directly. It’s actually about legal writing, and how to handle scientific topics. Because what jumped out the most to me about Breyer’s Google opinion was not necessarily the result. It was that despite combining two intensely technical fields (law and computer programming) anyone can pick it up and understand it.

And as anyone who has ever tried to write about scientific or technical topics knows, that’s deceptively hard to accomplish. So how did Justice Breyer do it?

Three features of the opinion stand out.

Analogies

Though you’ll rarely find them in legal briefs, analogies are a great way to explain a complex process or concept. By comparing something familiar to something new, the writer can help the reader form a picture in their mind.

Breyer employs analogies throughout the Google opinion, beginning on the third page:

“One might think of a software platform as a kind of factory floor where computer programmers (analogous to autoworkers, designers, or manufacturers) might come, use sets of tools found there, and create new applications for use in, say, smartphones.”

Notice how he takes something esoteric (software platforms) and turns it into something concrete (a factory floor). The analogy allows readers to intuitively grasp something that most have never worked with.

Or consider later, after spending a great deal of time defining technical concepts relevant to the case, the Justice pauses to clarify one with two analogies in quick succession:

In this sense, the declaring code performs an organizational function. It determines the structure of the task library that Java’s creators have decided to build. To understand this organizational system, think of the Dewey Decimal System that categorizes books into an accessible system or a travel guide that arranges a city’s attractions into different categories.

Without them, a reader might ponder over this paragraph, trying to form a picture of an “organizational system,” an abstract concept that most people don’t think about often. But travel guides and the Dewey Decimal System? I get that. And now I see what Justice Breyer is trying to say about declaring codes: they are a way of labeling tasks.

Or, finally, the extended analogy near the end of the opinion’s facts section that draws everything together:

“Consider a comprehensive, albeit farfetched, analogy that illustrates how the API is actually used by a programmer. Imagine you can, via certain keystrokes, instruct a robot to move to a particular file cabinet, to open a certain drawer, and to pick out a specific recipe. With the proper recipe in hand, the robot then moves to your kitchen and gives it to a cook to prepare the dish. This example mirrors the API’s task-related organizational system. Through your simple command, the robot locates the right recipe and hands it off to the cook. In the same way, typing in a method call prompts the API to locate the correct implementing code and hand it off to your computer. And importantly, to select the dish you want for your meal, you do not need to know the recipe’s contents, just as a programer using API does not need to learn the implementing code. In both situations, learning the simple command is enough.

Now let us consider the example that the District Court used to explain the precise technology here. A programmer wishes, as part of her program, to determine which of two integers is the larger. To do so in the Java language, she will first write java.lang. Those words (which we have put in bold type) refer to the ‘package’ (or by analogy the file cabinet). She will then write Math. That word refers to the “class” (or by analogy to the drawer). She will then write max. That word refers to the ‘method’ (or by analogy to the recipe). …”

Simple? Of course not, but imagine reading those two paragraphs without the analogies built in.

Notice one other thing, too. Each of Justice Breyer’s analogy is fresh, not a stale cliche (e.g., needle in a haystack, fish out of water, wolf in sheep’s clothing). Readers skip over cliches. And they don’t create an image in the mind.

Conversational

If you read the full opinion (which you should), you’ll also notice that Justice Breyer’s opinions reads as if he is explaining the concepts to an intelligent friend. Sure, he uses longer words than many writing gurus prefer (like “particularly”), but it still seems natural—probably because Justice Breyer would use those words if he were talking to a friend.

He does not write an opinion that sounds like it belongs in a technical journal. This isn’t how a computer programer would describe the process. It is written for a person who is interested, but new to the topic.

Too often we (writers, and especially lawyers) are tempted to write for the “initiated.” Using jargon (or latin), or “impressive” words, when simpler ones would do. Justice Breyer’s Google opinion is a good reminder that good writing is clear writing, and we don’t need all that noise to make a point.

Fun

Lastly, you can just tell that Justice Breyer enjoyed writing this opinion. From the creative analogies to the warm tone to the willingness to get into the weeds, his enthusiasm bleeds through on the page.

We spend a lot of our time writing about technical topics. Statutes. Expert testimony. Technology assisted review. Google shows how your effort to get interested in them and make them interesting will shine through in the final draft—and also help your readers understand (and hopefully agree with) your point.

Conclusion

I’ll close with a couple book recommendations. If you’re looking for other examples of writers tackling technical topics with verve to enjoy and emulate, here are few suggestions you might enjoy:

• Walter Isaacson, The Code Breaker

• Charles Mann, The Wizard and the Prophet

• Matthew Butterick, Typography for Lawyers

And with that, I’m signing off for the week. Enjoy your weekend!

Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.

If you liked this article or have thoughts about it, please like or comment below (or email me at breese@flannerygeorgalis.com) and consider sharing it with your friends and network.

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