Judge Frank H. Easterbrook of the Seventh Circuit Court of Appeals has given interviews on how to decide what to appeal, common mistakes on appeal, avoiding “counter-punching,” and how to style a persuasive brief. He emphasized three points: 1) cull and frame the issues; 2) write for the generalist judge; and 3) use good typography
On choosing issues, Judge Easterbrook encouraged appellants to consider the standard of review and whether winning the issue achieves a reversal. He explained that the Court is more likely to reverse on legal issues because district courts rarely make clearly erroneous factual findings. He also expressed dismay at appellants who raise issues that cannot change the result, where the appellant still loses even if they win the point.
Judge Easterbrook further advocated that respondents frame the issues and not “counter-punch.” Counter-punching,” he explained, is when respondents answer the opening brief’s points A, B, and C by arguing not-A, not-B, and not-C. Judge Easterbrook urged respondents to tell the Court why they should win before they say why the other side should lose.
He also reminded attorneys that judges are generalists and favor writing that is simple and direct. He suggested that attorneys learn their writing style from the New Republic and the Weekly Standard, not law books.
Lastly, Judge Easterbrook emphasized good typography. He explained that word processing programs deviate from professional printing standards, urged attorneys to use these standards, and suggested the Seventh Circuit’s guidelines.
Does anyone have other tips to add? Please leave a reply or reach me at www.attorneyroberthill.com.