The Appellate Section of the Orange County Bar Association recently presented an interview with Justice Ming Chin of the California Supreme Court. Needless to say, I try to attend these interviews, hoping I can pick up a hint or two about how to prepare briefs or be effective at oral argument. (Even after all of these years, I am capable of learning.)
Justice Chin reminded us that the Supreme Court has a heavy work load and a short attention span, presumably because it has to deal with so many cases. He said, “Take out all of the excess words in your brief.” Okay, that sounds simple, but believe me, it is hard work. Longer is easier, but shorter requires a lot of editing. While you want to take out “excess” words, you certainly don’t want to throw out the important words.
He suggested a short introduction in your brief and to put your best foot forward in the first paragraph. None of this, “This case arises from . . .” Get right to the point. I call it the “T.V. Guide” approach. That first paragraph can set the tone for everything that follows. It should make the reader want to read the brief and gives the Court a clear idea about what is being sought and why the author should win.
Justice Chin suggests a brief with 2-3 issues only. He says, “The Court is not going to sift through the brief that attaches everything done below.”
While Justice Chin finds oral argument important, it might not be important for the reasons you think. Going into the hearing, a conference memo has already been prepared and circulated. It is only after the Court has at least four justices who agree that the matter is even set for oral argument, which offers the justices an opportunity to “fine-tune” the opinion. Get that, not change its mind, but to fine-tune what the justices already decided. Justice Chin also remarked that on one occasion, the justices concluded “we got it wrong.” One occasion!
Justice Chin also advised attorneys to have a theme for their appeals. The attorney should be able to put that theme into one sentence. He also cautioned attorneys to consider what to wear to court. He mentioned one example of a female attorney who wore a bunch of bangles on her arm that made noise when her hand touched the lectern. I don’t even like having my purse sitting on the counsel table.