By Josh Wolff
Research Attorney, Illinois Appellate Court, First District
On October 28, 2015, the Association gathered at the Union League Club in Chicago to host “The Finer Points of Writing: A View from Both Sides of the Bench” featuring Justices Terrence Lavin and Mary Anne Mason of the Illinois Appellate Court, First District.
ALA President Michael A. Scodro began the event by offering welcoming remarks as ALA members and guests enjoyed lunch. In doing so, President Scodro previewed future ALA events, including the next event in November, featuring Dean Daniel W. Hamilton of the William S. Boyd School of Law (University of Nevada – Las Vegas), who will speak about the history of the federal appellate courts.
Justices Lavin and Mason then began their discussion on legal writing. Justice Lavin spoke about his process of drafting an opinion, from the beginning to the end product. He observed the entire process of “brief dissection, record exploration and opinion construction” has been rewarding. Justice Lavin said he has learned a lot since his appointment to the appellate court, including when to tone down an opinion. He explained that when a fellow justice writes, “I concur in the judgment only,” he knows it is time to tone down his writing. Justice Lavin described his “prolixity” as a weakness of his early opinion writing and he now knows that “less is more.”
Briefly changing topics, Justice Lavin spoke highly of oral arguments because of his affinity to engage with the lawyers. However, he admitted that argument seldom changes the outcome of a case.
Justice Mason opened her remarks by stating she is the “luckiest lawyer” because she has a job she loves. She focused her discussion on suggestions to appellate lawyers to improve their briefs. She described brief writing as truly an “art.”
In the nature of the case section of a brief, Justice Mason said this is the party’s first opportunity to tell the justices what is important. She suggested improving this section by including specific facts relevant to the nature of the case, not merely a generic boilerplate paragraph.
Justice Mason moved on to the statement of facts section of a brief. She advised against serial narration of facts. Instead, brief writers should put the reader into the moment of the action and “tell a story.” She also suggested to use the parties’ names in the statement of facts and to avoid at all costs acronyms and the generic “defendant,” “defendant’s mom,” etc. When necessary, an “understandable shorthand” is acceptable. Justice Mason’s most important advice was to make sure that every fact included in the statement of facts could be cited to the record. Justice Mason gave her own initialism for the statement of facts: “AAFF,” or “assiduously avoid fudging the facts.” She also recommended that the appellee avoid a completely new recitation of the facts in its brief. Instead, an appellee should point out what is missing or incorrect about the appellant’s brief. By approaching a statement of facts in this manner, Justice Mason said you can already highlight to the court your opponent’s weaknesses.
In discussing the argument section of a brief, Justice Mason urged the audience to trust the reader to remember the statement of facts and to avoid unnecessarily repeating material. Justice Mason also suggested distinguishing opponents’ cases more succinctly in order to keep the brief focused.
The event concluded with a question-and-answer sessions, with the ALA members and guests having the unique opportunity to ask the Justices questions.
The ALA thanks Justices Lavin and Mason for an informative and enjoyable luncheon, and all of the guests for their attendance and participation.
DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.