Specialty 1 of 3: Federal Briefs and Motions
Federal appellate litigation and complex federal motions: The applicable federal rules leave no room for error, and federal courts demand a level of analysis and writing that is exceptionally rigorous, accurate, and detached.
They seek analysis and writing that is trustworthy and objective — not just about your case, but about each area and source of law that your case implicates. Substance, tone, and clarity are essential. Even the most complex facts and issues must be understandable. It is fatal to avoid unhelpful law — or ignore facts that are clear in the record.
If your papers are inferior, the court will turn to the papers of the other side — and often not look back. They will be integrating your issues and facts into broader legal considerations beyond your particular case; the federal courts are generalist and cohesive in nature.
Trial counsel can benefit from a seasoned outside lawyer who is experienced in all of this — a lawyer who thinks like a federal courts generalist and who writes like a federal courts specialist. Both add value.
The generalist-specialist also adds value regarding threshold, or predicate, issues. Many motions and appeals turn on jurisdiction, procedural posture, applicable substantive standards, standards of review, and more. They can pose the most difficult questions in federal practice.
Such threshold issues often require specialized research and briefing before the merits issues can be addressed. It is fatal to miss them or incorrectly analyze them. The generalist-specialist can see them and properly address them.
Proper foundation and planning for all of the above occurs long before the writing process begins — preferably in discovery or before the first motion from which the case could be won or lost. Some common junctures are as follows:
Pre-trial and trial stages:
- Motions to dismiss;
- Summary judgment motions;
- Motions regarding experts and key evidence;
- Motions to secure pre-verdict judgments and/or post-trial relief; and
- Jury instructions.
Pre-appeal and appeal stages:
- Jurisdiction — an essential analysis in federal appeals;
- Statement of the facts and procedural history;
- Standards of review — both correct identification and application of the standards of review; and
- Correctly identifying the most promising two or three — never more than four — issues for appeal.
. . .
Efficiency and productivity are also important. There is not time for incorrect or undisciplined legal research, revisions or edits that are not affirmatively helpful, writer’s block, serious big-picture errors, or other inefficiencies.
These result in a bill that most clients will not accept, requiring write-offs. They also result in work product that will not impress a federal court.
The time that you set aside for your brief or motion is needed for top-tier research, superior drafting and revising, and clear improvements to the papers with each revision, until they are as accurate and persuasive as possible.
All tasks must be fully accomplished, down to maximizing the persuasive effect of each word in each argument heading. Certainly, in the final hours before filing, there is never time to cut hundreds of words, re-organize arguments, or fix errors in a jurisdiction analysis.
For more about preparing appeals and trial-level motions, see here.
Logistics, details, costs, and fees are here.