Tuesday, January 7, 2014

Cut-'n-Paste Briefs Don't Cut It: Chen v. Holder

By E. King Poor
Partner, Quarles & Brady LLP

The advice is familiar. At continuing legal education seminars and in books and articles on legal writing, time and again, lawyers receive this admonition: Beware of lengthy quotations or string citations—they are not welcome by the reader, namely, the judge who will decide your case. The importance of heeding this caution was highlighted recently by the United States Court of Appeals for the Seventh Circuit in Chen v. Holder, __ F.3d __, 2013 WL 6482542 (7th Cir. Dec. 11, 2013).

The Chen case involved a decision by the Board of Immigration Appeals denying asylum to a Chinese woman who claimed a serious risk of persecution if she were deported to China. In particular, the petitioner argued that, because she had given birth to two children while living in the United States—in violation of China's one-child policy—she faced a significant risk of forced sterilization if she returned to China. Id. at *1-2.

But before addressing the merits of the appeal, the Seventh Circuit discussed the petitioner's brief. The court described the brief as consisting of "almost entirely of verbatim quotations" from either the administrative record or other Seventh Circuit decisions. Id. at *3. Even the summary of the argument section contained "entirely (not almost entirely)" extended quotations from Seventh Circuit opinions. In fact, in a brief of 49 pages, the court noted that there were "only five original sentences." A brief  "so composed is not helpful to either the reviewing court or to the client." Id.

The court continued that, while often a weak brief signals a weak case, in this instance, the case was not "desperately weak." Id. Yet whatever the merits of the appeal, the court emphasized that "we cannot write a party's brief, pronounce ourselves convinced by it, and so rule in the party's favor. That's not how an adversarial system of adjudication works." Id. The court contrasted the inquisitorial systems of Continental Europe, Japan, and other parts of the world with our adversarial system, which relies more heavily on lawyers for evidence, research, and analysis. It pointed out that the dependence of American judges on lawyers to develop arguments is underscored by a judges-to-lawyers ratio in the United States, which is some six times greater than in Continental Europe. Id. at *3-4. The court summed up its view of the matter: "We're neither authorized nor equipped to write a lawyer's brief for him." Id. at *4.

The court then turned to the merits and criticized the Board's and the immigration judge's analysis that downplayed the risk of forced sterilization that the petitioner might face if she returned to China. Id. at *4-6. But it finally concluded that the petitioner's failure to present evidence of her and her husband's financial resources to pay fines to avoid sterilization was a "fatal weakness" in her case and affirmed the Board's denial of asylum. Id. at 7.

But back to the petitioner's brief. The Chen decision reinforces what is said at all those seminars, and in books and articles on legal writing: avoid an over-reliance on lengthy quotations. In the words of Justice Scalia and Bryan Garner, "[I]t will be your reasoning that interests the court, and this is almost always more clearly and forcefully expressed in your own words than in the stringing together of quotations from various cases." Antonin Scalia and Bryan A. Garner, Making Your Case: The Art of Persuading Judges 128 (2008). To be sure, there is a time and place for well-chosen quotations in any brief, but the Chen case is a reminder that there can be too much of a good thing. Ultimately, the court wants to hear from the lawyer.

Recommended Citation: E. King Poor, Cut-'n-Paste Briefs Don't Cut It: Chen v. Holder, The Brief , (January 7, 2014), http://applawyers-thebrief.blogspot.com/2014/01/cut-n-paste-briefs-dont-cut-it-chen-v.html

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