Prelude: I’m reluctant to link to Jay O’Keeffe’s post.  Not because I don’t like the post. I do. Very much so, in fact. But it’s on the standard LexBlog platform, filled with marketing garbage (like his Avvo rating) that makes me cringe. 

It suggests that Jay’s purpose in writing is primarily to market himself and his firm, and it’s not my purpose to be complicit in his marketing, and that Jay lacks faith in his writing to be sufficiently worthwhile to cause any reader to seek him out.  Not that there is any reason for Jay to heed my advice rather than, say, Kevin O’Keefe’s, but I hope he does.  His post is excellent, funny, thoughtful and interesting, and it would be a waste for such a good post to be ignored because of the taint of banal self-promotion.  He should have more faith in himself.

At De Novo: A Virginia Appellate Law Blog, Jay takes a swing at Judge Posner (I Am Richard Posner . . . and So Can You?) in the process of laying out his approach to writing an appellate brief.

Judge Posner is a brilliant and prolific writer. As a person who writes for a living, I was naturally intrigued. Also, I picked up the link from U of R Professor Kevin Walsh‘s Twitter feed (@kevincwalsh). Professor Walsh has a habit of sharing fascinating arcana, like the story behind the terrifying hat that Justice Scalia wore to the inauguration.

Unfortunately, except for one incredible line, the Posner article is a bit of a let down. Here’s the line:

Well, I don’t like the Supreme Court. I don’t think it’s a real court. I think of it as basically…it’s like a House of Lords.

Hilarious.

Come on. This is great stuff.  And while Judge Posner, who will never get a seat at the big boy’s table and so loves to pointedly smack the Special Nine for their looking down their noses at the groundlings who are constrained to suffer their dictates, can get away with this, the rest of us are constrained to either hold our tongues or suffer the ignominy of being irrelevant.  It’s not like Nino Scalia gives a hoot about what some trench lawyer thinks of him.

Jay segues from Posner’s high court smack to his judicial output (about 90 opinions a year and considers the average SCOTUS justice’s workload to be “ridiculous”), noting that Judge Posner is both prolific and brilliant.

Not super helpful. Judge Posner is brilliant and prolific because he’s brilliant and prolific. Got it.

Perhaps it’s more helpful than Jay lets on, as he moves forward toward describing his modus operandi:

Here’s how I write briefs:*

1. Review. I review the record (on appeal) or the pertinent facts (in the trial court) to get up to speed.
2. Brainstorm. I brainstorm potential appeal points and arguments, writing all of them down in a mind map/whirly-bird outline. Sometimes its color coded. I find that worrying too much about the law at this point will limit my creativity. For now, it’s just facts and equity and trying to generate as many ideas as possible. If I come up with a factually compelling argument for a fair result, I will most likely be able to find a legal framework to support it.
3. Research. Now that I have all of these great ideas about what the trial court might have done wrong, I do some legal research to see which (if any) have merit.

* Again, to be excruciatingly clear: This is how I write briefs. Blog posts I basically vomit into the internet with minimal thought or editing. They’re lucky if they get a spell check.

Rinse and repeat.  Jay’s second point, brainstorm without regard to the law, is what really makes this worthwhile. I write this because I do the same, except for the color coded thing.  Trying too hard to think “lawyerly” in the first go-round makes it impossible to think outside the box, to think of arguments that, perhaps, no one had thought of before.

There are two types* of lawyers: those who are slaves to precedent and those who create precedent.  What Jay is writing about is how one approaches a case without the chains of “what the law is” and looking at the case instead from the perspective of what the law should be. It’s descriptive versus normative.

It’s how cases like Gideon and Miranda and Brady and Brown v. Board of Education happened.  Because if the lawyers who undertook these cases never thought beyond extant precedent, they could never have argued for the law to change.  The law said their arguments were wrong. The law was against them. But instead of worrying about the law, they argued for a change to the law to be what it should be. Normative happens.

Does it happen in every case? Will it happen every time?  Will judges be receptive to new approaches, new ideas, overturning black letter law in the face of arguments that take a nice, stable jurisprudence and shake it up?  Of course not. It’s hard to move mountains, and they budge very reluctantly.  Most judges are scared to death to vary from the easy course of applying precedent, taking the risk of being called radical and activist for even considering a different approach that can’t be found in a headnote.

And yet, some lawyers, like Jay, start out their briefs thinking not about what everybody did before, but what can and should be done this time.  It’s a very cool concept, the notion of approaching a case, the law, as if it were a blank slate to be written in the way that best serves society.

For those who adhere to the notion that nothing can be done, that it’s not worth it to try, then this is just a waste of effort.  Much like Jay’s using his blog with such good content as a platform to strut down the boulevard in hot pants rather than trust his writing to suck in others who appreciate what he’s got going on underneath.

*There are far more, but they don’t apply to my point in this post so I’m going to ignore their existence for now.

H/T Marilou Auer (who finds all sort of curious stuff on the internets)