Judicial law clerks (2) serve a necessary function in the daily work of Florida's courts. (3) Justices and judges could not perform their duties without the assistance of their law clerks. One of the many duties of a law clerk is to review, summarize, and memorialize the briefs in cases assigned to their jurists' chambers. Law clerks are, therefore, a liaison between advocates and the judiciary. As an appellate advocate, it is your duty to ensure that those who are among the first to read your brief are not immediately dissuaded by your stylistic choices. As former law clerks ourselves, our goal is to point out the most frequent offenses. Much like Kate Hudson's Andie in the movie, How to Lose a Guy in 10 Days, do the following at your own peril--not everyone is Matthew McConaughey.
* Fail to Abide by the Clear and Simple Rules of Appellate Procedure --You are probably questioning why this one is here. It is simple--follow the rules! You would be surprised how many writers of briefs fail to follow the basic rules set forth in the Florida Rules of Appellate Procedure. For example, we have seen briefs that change to a different font in the middle of a sentence despite the clear and simple rule that "[c]omputer-generated briefs shall be filed in either Times New Roman 14-point font or Courier New 12-point font." (4)
Another rule provides that the initial, answer, and reply briefs must contain a "[t]able of contents listing the sections of the brief, including headings and subheadings that identify the issues presented for review, with references to the pages on which each appears." (5) We have seen briefs that have incorrect page references or no page references at all.
We realize these may seem trivial, but consider it from our perspective. The law clerk's day is spent reviewing briefs and the record to discern what happened. You are our guide. We need you because we were not there. But, we need your assurance that you know what you are talking about. The easiest way to get us to doubt you is to be cavalier about the rules.
* Make Arguments in the Fact Section--Your advocacy begins in the facts section. Be sure to include as many asides, footnotes, and aspersions as you can to ensure you do not omit a single argument. Why should your fact section merely be a recitation of the facts of the case in nearly chronological order? Why should you tell a story when you could make additional arguments? Why should you bypass an opportunity to slam the opposition? Why? Because it undermines your credibility. Law clerks do not begin their review of a case biased toward a party or an idea. We tend to pride ourselves in our ability to be neutral and see both sides of any case. That said, it is human nature to question the veracity of any fact that is not supported by a record citation or is not stated as directly and succinctly as possible. Once the question enters a law clerk's thought process, that law clerk will inevitably begin to search for the answer to that question whether it can be found in your brief, opposing counsel's brief, or the law clerk's independent research.
In our opinion, it best serves your client and the court when your facts section helps set out the facts of your case in the best possible light to your client. Omitting facts or including arguments within the facts section makes it more difficult for the law clerks and, ultimately, the court to understand the case. The court does not review the case in a vacuum--it will have access to opposing parties' briefs, the record, and the law clerk's independent analysis. While it is helpful to frame the argument and provide your version of the story, you do not want a law clerk spending too much time simply attempting to understand what happened before turning to the legal question your case presents.
* Reinvent the Wheel--Think back to when you were in elementary, middle, or high school. How many times were you told to put something "in your own words?" This is ingrained in us early on. We are here to tell you that it does not have to--and maybe should not--be that way. We are not telling you to file a brief full of block quotes. In our experience, block quotes, particularly when they span multiple paragraphs, generally are ineffective. The reader almost always glosses over the block-quoted text, looking for when the regular text begins again. If you are relying on a well-established legal...