Thread by @Nonfinality

1/ Thread. Here are some of my appellate litigation rules. I try not to repeat stuff I’ve heard 1,000 times in CLE’s (like don’t mislead the court), but a few have slipped in. Some are in tension with others. That’s life.
-The side with the better story almost always wins.

2/ -The factual statement is the most important part of a brief.
-In a statutory interpretation case, the side with the shortest plausible brief insult likely win.
-Visit your client, even if they’re in prison, especially if they’re in prison.
-Listen to your client.

3/ -Don’t file a writ where a motion will do.
-Writs are squirrelly things.
-Don’t file a motion where a notice will do.
-Always treat crime victims with respect. It’s the right thing to do, and rubbing salt in a victim’s wounds never helps your client.

4/-Never turn down a chance to be kind to a crime victim.
-Don’t muck up a good statutory argument with a mushy constitutional claim.
-Combine the statement of the case and facts. Never start a brief with, “On July 23, 2019, an indictment was filed....”

5/ -Thinking through what happens if you win is often more important than knowing what happens if you lose.
-You don’t win or lose, your client wins or loses.
-The most stressful cases are those where you think your advocacy skill matters the most.

7/ -Don’t make fun of typos. Yule make ur own.
-Think about how a vision-impaired person will read your brief.
-Don’t use courier font, ever. Just don’t.
-One reason to break a paragraph is how it looks on the page.

6/ -Don’t make fun of typos. Yule make ur own.
-Think about how a vision-impaired person will read your brief.
-Don’t use courier font, ever. Just don’t.
-One reason to break a paragraph is how it looks on the page.

7/ -Use lots of headers, put them in your table of contents, and make sure your table tells the story you want.
-Don’t use Times New Roman unless the court requires an unnaturally large font.

8/ -Other than the client, the most important people in the world are judicial assistants, court administrators, court reporters, and your own support staff.
-Your kids need your attention at least as much as you clients do.

9/ -I’m my client’s lawyer, counselor, and fighter.
-I am not the client’s mouth piece.
-I am not the client’s friend (others disagree with this, I know.)
-You can’t demand that your doctor prescribe you anything. Your client can’t demand that you raise any specific argument.

10/ -The client (with the lawyer’s consultation) controls the ends of the litigation, the lawyer (with the client’s consultation) controls the means.
-Don’t call a judge or another lawyer a liar unless you’re planning on filing a disciplinary complaint.

11/ -When there’s a hole in the record, try to blame the other side for it. If you can’t do that, fill it.
-Look for issues where you get the benefit of factual inferences (especially denied jury instructions).

12/ -If oral argument prep leads you to discover a case you missed during briefing, judges will be a lot more likely to get mad if you file supplemental authority than if you just spring it on them at oral argument. This is ridiculous.

13/ -In your free time, read stuff that makes you want to turn the page to see what’s next.
-Go through the transcript with ctrl-F for the word “object.” Check them all.
-If something feels unfair, flag it to see if you can turn “that’s unfair” into “that’s reversible error.”

14/ -Never leave a bad fact for the other side to mention in their answer brief.
-If the other side leaves you a good fact, pounce.

15/ Don’t forget to put hashtags like #AppellateTwitter and #LegalWriting at the beginning of a long thread about appellate practice.

2.1/ Remember what I said farther down about not making fun of typos? “In a statutory interpretation case, the side with the shortest plausible brief usually deserves to win.”

16/ -Humor can sometimes be appropriate at oral argument if it is appropriate, topical, and advances your argument. Jokes are never OK.