Should appearances matter? In principle, no. We should not judge a book by its cover or a person by his or her physical attractiveness. Likewise, one supposes, a judge should not assess a brief differently depending on whether it is written in Courier (ugly) or New Century Schoolbook (lovely). So what can be less useful than a guide to appellate brief writing that is, at bottom, about appearances?
Yet my U.S. Supreme Court Brief Writing Style Guide is about little else. It provides no advice on the types of legal arguments that are effective in the Supreme Court. And it provides only occasional advice on how to write a convincing appellate brief. Most of the Style Guide is instead devoted to matters such as how properly to cite a Supreme Court case (cite only the official U.S. Reporter) and how the Opinions Below section should read. Why did I bother?
The answer, of course, is that appearances do matter. A job applicant should not show up for an interview wearing a t-shirt and ripped jeans. A male attorney appearing in court ought to wear a tie. When we bungle how we present ourselves, we are judged harshly--and for good reason. Sloppy, inappropriate attire is a sign. It tells us that the person is too green to know what's appropriate and didn't care enough to find out.
Legal briefs are judged--to an extent--the same way. Judge Wald noted in these pages almost 20 years ago that "you cannot imagine how disquieting it is to find several spelling or grammatical errors in an otherwise competent brief. It makes the judge go back to square one in evaluating the counsel." (1) I wrote the Style Guide to address a related flaw in too many Supreme Court briefs I had read: the failure to abide by the Court's unwritten rules and customs.
At bottom, it's about establishing credibility. A court is more likely to accept your characterization of the facts and your explanation of the law if you have earned its trust. Time and again, judges and experienced practitioners have told me that nothing is more important for an advocate then establishing credibility with the court. That is especially true for repeat players--such as the group of attorneys with whom I work, members of state attorney general offices.
So how do you establish and maintain credibility? To loosely paraphrase Chief Justice Roberts, the way to earn trust is to act trustworthy. (2) That means being scrupulously honest and accurate; not misstating the facts or the law; not exaggerating or...