Paraphrasing Mark Twain: “It is Better to Keep Your Mouth Closed . . . .”

18 Sunday Nov 2018

Posted by Celia C. Elwell, RP in 6th Circuit Court of Appeals, Appellate Law, Brief Writing, Contract Law, Legal Argument, Legal Writing

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Above the Law (blog), Benchslap, Contract Interpretation, Hyperbole, Joe Patrice, State Farm

Don’t Mock A Legal Argument If You’re Completely Wrong, by Joe Patrice, Above the Law Blog

https://abovethelaw.com/2013/09/dont-make-fun-of-a-legal-argument-if-youre-completely-wrong/

Mark Twain said, “It is better to keep your mouth closed and let people think you are a fool than to open it and remove all doubt.” It is always awkward when the court benchslaps your legal argument.

There are useful lessons here for all of us, not just State Farm. First, when your client is relying on the terms of a contract, note its details before you say something you will wish you hadn’t. Second, be careful with hyperbole and sarcasm when writing a brief for an appellate court.

I agree with Mr. Patrice. The opening paragraph of the Sixth Circuit Court’s opinion is worth repeating. -CCE

There are good reasons not to call an opponent’s argument ‘ridiculous,’ which is what State Farm calls Barbara Bennett’s principal argument here. The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); and that, even where the record supports an extreme modifier, ‘the better practice is usually to lay out the facts and let the court reach its own conclusions.’ But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct.

Good Advice On How to Avoid Embarrassing Mistakes In An Appeal.

16 Sunday Feb 2014

Posted by Celia C. Elwell, RP in 5th Circuit Court of Appeals, Appellate Law, Bad Legal Writing, Brief Writing, Case Law, Citations, Citations to the Record, Legal Analysis, Legal Writing, Mandatory Law, Primary Law, Proofreading, Research, Statement of Facts, Texas Supreme Court

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Appellate Briefs, Appellate Law, Appellate Lawyer, Chad M. Ruback, Citations, Citations to the Record, Hyperbole, Justice Debra Lehrmann, Legal Writing, Proofreading, Statement of Facts, Texas Supreme Court

Common Mistakes Seen in Appellate Petitions and Briefs, by Chad M. Ruback, Appellate Lawyer

http://news.appeal.pro/appeals-to-texas-supreme-court/appellate-petitions-and-briefs/

Mr. Ruback served as a briefing attorney to the Fort Worth Court of Appeals. Here he shares the common mistakes that are normally seen in appellate writing. Because an appellate court never questions witnesses or hears evidence, the written documents submitted by the parties are all it has upon which to base its ruling. Sloppy and lengthy garbled arguments simply will not do. Mr. Ruback’s comments are worth noting.

I would like to add to Mr. Ruback’s list – neglecting to verify the accuracy of the appellate record while it remains in the jurisdiction of the trial court. It is a simple exercise to compare the record compiled by the trial court clerk using the Designation of Record and Counter-Designation of Record to make sure that the record is accurate.

This may seem a waste of time until the appellate record includes a deposition that was never admitted into evidence or a crucial piece of evidence is overlooked by the court clerk who assembled record for the appeal. No one is perfect; mistakes can happen.

Too often, counsel ignore this simple step. Personally, I would make sure the person you send to check the record put the trial exhibits together and/or was part of the trial team. Or to put it another way – how do you explain to a client that you couldl have avoided the appeal’s fatal flaw if you had checked the record before it was sent up on appeal? -CCE