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A Better Partnership
May 13, 2009

Chief Justice Kelly on Merits Briefs

Chief Justice Kelly spoke with us about the importance of identifying the linchpin to a case in merits briefing, as well as explaining how the holding the attorney is requesting will affect the development of the law in the area.' The Chief Justice's comments are helpful in delineating the broader policy interest of the Michigan Supreme Court as Michigan's court of last resort.

OCJ Blog:' Chief Justice Kelly,' . . .' do you read every brief that's been submitted to the Court before oral argument'

CJ Kelly:' Yes.' Sometimes I read some briefs more closely than others.' It depends, of course, on the status, you know, of the case, just how challenging it appears to be.' But I certainly do get all the briefs.

OCJ Blog:' What do you find persuasive in a brief on the merits'' ' '

CJ Kelly:' Well, I like a brief where the attorney is able to identify the crucial point or the linchpin of the' issue or issues and to also grasp the significance of the holding that the attorney is requesting from us, the significance on the rest of the law in the area, and how it will affect the development of the law in the area.' '

And I find very helpful if counsel can describe in logical steps the course that the rationale of the opinion might take in order to arrive at the holding' that is sought.

OCJ Blog:' And on the flip side, what do you find particularly unpersuasive'' '

CJ Kelly:' It's always unpersuasive if a mistake is made or a misrepresentation is made of fact or law.' It's not' persuasive and it's somewhat vexing when the brief is not easy to understand.' So clarity is truly essential.' And it can get irritating if the counsel is making a' shotgun approach to the case and covering many issues as if they were all of equal importance when in fact' counsel should be able to identify the most important issues and the most -- the most important issues to the success of the case and get them right up in front for' us.'

OCJ Blog:' What would your advice to counsel be with regard to the maximum number of issues that should be presented in' a -- to the extent there is one, in a case'' ' ' ' ' ' ' ' ' ' ' ' '

CJ Kelly:' Well, I don't know what the maximum is.' I know that when we get over five it's unlikely that it's going to' be effective, I think.' It certainly does depend on the kind of case, of course.' For example, when we get some' of these MPSC cases, Public Service Commission cases, there can be a huge number of issues because they will' involve enormous amounts of money and many organizations and sometimes the litigation has been taking place over' a period of years.' So in cases like that one expects a great number of issues.' ' '

OCJ Blog:' What three to five suggestions do you have for a practitioner hoping to submit a winning merits brief to this court'

CJ' Kelly:' Well, I'd suggest trying to identify what I'm calling the linchpin or the crucial point on the issues and' trying to organize the issue so that the most persuasive issue is probably first.' And, again, trying to give the Court a clear sense of how -- not only how to rule but what steps the ruling should take in order to reach its' conclusion.' Because it's often in laying out the logical sequence that one finds the error or the glitch that prevents one from getting from Point A to Point C.'

OCJ Blog:' Do you have a typical practice in terms of do you approach briefs in the same manner every time, reading' the same parts first and the same parts last'' ' ' ' ' ' ' ' ' ' '

CJ Kelly:' I don't approach them the same way, but by the time I get to the briefs I know what I'm looking for.' So I' will, for example, look at the index and look for the issue that I feel is most important and go to that first.' Of course, if it's a real short brief then, you' know, it doesn't take long to get through it no matter how one does it.' But that's the best I can say with regard to my approach.

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