April 27th, 2022
In the corner of my office is a camel-coloured litigation bag. Freckled with dark splashes, its sides both stiff from good workmanship and slightly sagging from over-use, you can almost hear the stories pouring from the briefs that once filled it.
The litigation bag is not mine. I mean, it is now. I rescued it when it was cast aside by its previous owner, one Earl Cherniak, who perhaps is not quite as sentimental as I am about such things. (And perhaps he has had more than one old litigation bag in his 60+ year career.) I mean, in this age of electronic briefs and rolling carts, maybe a great advocate no longer needs a great litigation bag to carry their stories in. Or even a great pen to write them all down.
But what a great advocate still needs is a great story. We are, after all, storytellers. Our craft as litigators is to create a persuasive narrative; taking sometimes unwieldy facts, adding the structure of legal analysis, and telling a story that is both convincing in law to the judge as judge, and compelling to the judge as human. Trial lawyers understand that role; most certainly, ones that have a jury practice do.
The role is not reserved for trial lawyers alone, however. Appellate advocacy is its own form of storytelling. Unlike the original author, the appellate advocate’s role, as appellant, is to rewrite the story. The task of the appellate advocate is nuanced and, as far as storytelling goes, arguably a bit harder. The appellate advocate is given the characters and the same general plot and is tasked with convincing the court to come up with a new ending.
Have you ever read a book and been thoroughly dissatisfied with its ending? Perhaps some part of the story simply did not make sense (a palpable or overriding error?). Or the story seemed to be going in one direction before veering sharply outside the confines of what would be the expected structure of the novel (a legal error, or one of mixed fact and law?).
As a storyteller, what an appellate advocate tries to do as an appellant, is generate in the appellate court that same sense of dissatisfaction with the ending that you have as a reader when you read a less than terrific novel. As a respondent, the appellate advocate’srole is to reassure the court that it remains a good story – maybe one that is not on the bestsellers’ list, but one that is a complete work with an ending that is reasonable and rational, if not what the court would have written.
When I write a factum, I try to keep in mind how I choose a book to purchase in a bookstore. Rarely do I read the back of the book for its quick synopsis and its accolades. An interesting plot alone does not make a great story. The writing does. So, I open the first page and I read it, and the next. If the author has drawn me in by their writing, has through the description of characters and issues made me want to hear more of their story, I buy the book. I put my faith in the fact that if the writing and storytelling are this good in the first few paragraphs, the book will be worth my time. .
That is how I envision judges reading the overview and introductory paragraphs of a factum. If I can draw them into my client’s narrative and their story such that the judges continue reading with interest, I may be able to convince them to accept my ending as being the right one. The only one that makes sense. That is the goal. And when I stand on my feet to present the highlights of my story with them, the questions may either be a challenge to that narrative or ending, or a genuine interest to hear more of it.
I realize that unlike me, who simply chooses not to buy the book with the boring first two pages, appeal court judges must and do still have to read the whole factum even if the introductory paragraphs are not terribly compelling. I have received many decisions where it is apparent that my storytelling was less than convincing and where I re-read my overview and realize, painfully after the fact, that I clearly must continue to work on my craft. There are other times where it appears to me that the judges completely understood that there was a different story to tell but thought the book was a “choose your own adventure.” But, there is a story there nonetheless. As appellate advocates, especially with the increasing emphasis on written advocacy, we must learn how to rewrite those stories with reasoned endings and a plot that holds up to the most intense scrutiny.
So, I come back to the battered litigation bag. I have heard some of its stories, and with any luck (and a few more lunches and coffee dates), I will hear some more. These are not ‘war’ stories; they are stories of people and places, of mischief and damage, and of how our courts made sense of it all. Stories woven by excellent appellate advocates who, on occasion, convinced the court of their ending.