For The Defense
Storytelling in Brief Writing
by John J. Bursch
Stories resonate. To appreciate that fact, think about how quickly time seems to pass during a terrific movie, or count the number of times you have ignored more pressing deadlines because you simply could not put down a riveting book. Humankind has used stories for millennia to entertain, communicate, and teach, and with good reason: a good story pulls the audience in and does not let go until its conclusion, interpreting events and presenting truths that affect the way we think about life and each other.
Now, when was the last time you were similarly transported and transfixed by an appellate brief? Most likely, a very long time. Being an interesting (as well as persuasive) defense advocate is uniquely difficult, and writing a good appellate brief “may be the most difficult task of advocacy.” Aldisert, Winning on Appeal: Better Briefs and Oral Argument, § 2.4, at 24 (2d ed. 2003).
Storytelling concepts can help. Storytelling, like appellate advocacy, is an art form for “transmitting ideas, images, motives and emotions with which everyone can identify.” Cassady, The Art of Storytelling 12 (1994). And a storyteller, like the appellate advocate, is one who communicates to help an audience gain an understanding of those same ideas, images, motives, and emotions:
This individual takes a story, original or already in existence, adds his or her sense of humanity to it, and makes it come alive for an audience of one or more. The storyteller interprets life, presents truth and helps an audience enter into other realities for enjoyment and to gain understanding.
Id. at 15 (emphasis added).
On appeal, it is not enough to simply craft a great legal argument. As Ninth Circuit Judge Alex Kozinski glibly notes, “[t]here is a quaint notion out there that facts don’t matter on appeal-that’s where you argue about the law; facts are for sissies and trial courts. The truth is much different. The law doesn’t matter a bit, except as it applies to a particular set of facts.” Kozinski, The Wrong Stuff , 1992 B.Y.U. L. Rev. 325, 330 (1992). In other words, an appellate brief must tell a good story. With Judge Kozinski’s admonishment in mind, enter the realm of the storyteller.
The first and most important ingredient of any good story is the theme. Movie storylines based on weak themes are an invitation for critical and commercial disaster. The same is true for appellate briefs. The best theme for a story is not a legal issue at all, but a commonly held premise or belief, “something most people believe in and with which they can identify.” Cassady, The Art of Storytelling at 115. For example, a colleague has been very successful crafting themes based on Robert Fulghum’s best-selling book, All I Really Need to Know I Learned in Kindergarten . In a situation involving a purchaser’s lawsuit against a seller to recover the costs of environmental remediation, he deftly adapted Fulghum’s principle that “if you mess it up, you clean it up.” Similar universal themes can be drawn from the Bible, children’s stories and fairytales, commercial slogans, and even movies and books themselves, and it may be appropriate to have secondary themes for secondary issues or parties.
The importance of identifying a resonating theme for an argument is a concept at least as old as Aristotle’s Rhetoric. As one scholar has explained:
[T]o Aristotle, logical argument . . . is less about logic per se and less about form ithan about knowing and connecting with the audience. To Aristotle, logical arguments are persuasive not because of something inherently true about logic, but rather because the audience values and responds to logical arguments. . . . What’s more, not just any logical arguments will do; the premise for the arguments must be drawn from the experience and values of the audience .
Steven D. Jamar, Aristotle Teaches Persuasion: The Psychic Connection, 8 The Scribes Journal of Legal Writing 61, 62 (2002) (emphasis added). In other words, the most airtight logic loses its persuasive force if it cannot be inextricably linked with a story that will resonate with the appellate panel audience and its experience.
Unfortunately, there is a misconception that “telling a story” only works for plaintiffs. Good plaintiffs’ personal injury attorneys have elevated storytelling to a true art form. But corporate defendants also have stories to tell. Explain the painstaking efforts undertaken to keep a manufacturing plant open before the inevitable closure that simple economics demanded; detail every careful step of the quality control process that ensures a defect-free product; develop the harm caused by a casual breach of a contractual promise; paint the plaintiff as just one more product of a litigation system that encourages meritless lawsuits filed with the hope of making a quick buck. From boxes of trial transcripts and exhibits, it is the appellate lawyer’s first responsibility to cull the facts that personalize the client and develop a compelling story theme.
With a simple, universal theme in hand, drafting can begin. Every portion of the brief must embody and enhance the theme, from the statement of issues right through the conclusion. Nowhere is the theme more important than in the introduction. Like the first 60 seconds of oral argument, an appellate brief’s introduction is the one place virtually assured of the panel’s (or the panel’s clerks’) undivided attention. If the value of real estate is all about “location, location, location,” the appellate brief’s introduction is its most valuable piece of real estate.
A good story opening should set the scene and introduce the major characters. Cassady, The Art of Storytelling at 45. A principal problem with most appellate briefs is the myopic focus on character introductions, rather than setting the scene. Consider the following opening, which will sound all too familiar:
The parties in this action are Plaintiff/Appellant Automotive Industry Supplier, Inc. (“Automotive Supplier”) and Defendant/Appellee Independent Spring Manufacturer Corporation (“Spring Manufacturer”). Spring Manufacturer is a supplier of spring components for the automotive industry. Automotive Supplier purchased springs sold by Spring Manufacturer and incorporated them into parts that it sold to Automotive Producer, Inc. (“Automotive Producer”). The springs failed, and, following a recall, Automotive Supplier brought this lawsuit against Spring Manufacturer, claiming breach of warranty, among other things. The court below, correctly, dismissed all of Automotive Supplier’s claims against Spring Manufacturer because Automotive Supplier failed to comply with the notice requirements of Section 2-607 of the Uniform Commercial Code (the “U.C.C.”).
This introduction systematically introduces the relevant parties-and bores the reader to death, because it fails to set the scene. There is nothing in the first three sentences that even suggests what kind of case this is. Here is an alternative:
This is a case of commercial betrayal that illustrates the wisdom of the Uniform Commercial Code’s notice provision in Section 2-607. Appellant Automotive Supplier is seeking in this action to recover over $10 million from a supplier of about $50,000 worth of springs used in Automotive Producer vehicles. Automotive Supplier is pressing its claim even though it has never asserted--even in this litigation-that Spring Manufacturer defectively manufactured the parts. To the contrary, all parties agreed that the root cause of the problem with the springs was not some manufacturing mistake made by Spring Manufacturer, but a design change that Automotive Producer directed. Automotive Supplier never once suggested that Spring Manufacturer was responsible for this design change until filing this lawsuit, five years after the problem was discovered and nearly six years since the time of sale.
In contrast to the first example, which leads with party identification (as do most briefs), the second example starts with a colorful theme, “commercial betrayal.” This theme sets the stage for the action to follow, and it leaves the audience wanting more. This is not the time for elaborate character introductions, or even rote summaries of legal arguments. There will be plenty of time and pages to address such matters; be selective about the material you choose to use in this most valuable space.
Your theme does not have to be brash to be effective. Consider this opening line from a successful Brief in Opposition to a Petition for a Writ of Certiorari filed in the United States Supreme Court: “Petitioner seeks to invalidate a state law implied-in-fact contract simply because the contract relates to intellectual property.” This is a simple statement. It does not identify any parties (the Petitioner presumably took care of that task), and it does not attempt to cast moral aspersions. But it does sum up the parties’ dispute in a simple way that will resonate with the audience. “Why should a contract be treated any differently simply because it involves intellectual property? Doesn’t commercial exploitation of intellectual property rights depend on the right to contract?” Again, the audience is left wanting to know more.
If you are responding to a bombastic plaintiff’s appeal brief, try this effective paraphrase from Shakespeare’s Macbeth:
It is a tale told by [plaintiff], full of sound and fury, signifying nothing.
Then elaborate on why plaintiff’s allegations, even if assumed true, are insufficient to state a claim as a matter of law, thus vindicating the trial court’s decision to grant summary judgment in the defendant’s favor. Again, it is unnecessary for the audience to even know who the characters are for this theme to be effective. In sum:
It is not easy to write a good introductory paragraph. It takes great effort, but it is time well spent. A properly written introduction makes the rest of the brief-writing task comparatively easy. If you are unable to write a cogent, succinct, encompassing introduction, you probably do not have a solid grasp of the subject matter.
Bablitch, Writing to Win, Compleat Law, at 11 (Winter 1988). Make sure you have a “solid grasp of the subject matter,” then write a compelling introduction.
“Showing” the Story
If the theme has been successfully presented in the introduction, there should be little need to reiterate the theme again in the factual recitation. The facts should be organized in such a way that they themselves show the theme, so you do not need to tell it. This is not an easy technique, but it is an important one. As Professor James W. McElhaney notes, the more you try to “sell” your case, the more the audience will be inclined to treat you like a used car salesperson (and run in the opposite direction). You will fare much better by simply showing the story and letting the audience react to it.
For example, say you adopt the following as your appellate theme: “This dispute arises out of a terminated employee’s attempt to extract millions of dollars from his former employer based on a fictitious oral ‘agreement’ to pay him annually a share of company profits as a bonus.” Rather than making personal attacks on the plaintiff, or using argumentative language in the factual background, simply line up the key facts in a series of paragraphs, each with its own non-argumentative theme: defendant denies any agreement regarding a profit bonus; plaintiff admits the parties never discussed a profit bonus; the parties’ past practice is inconsistent with the alleged profit bonus; and the plaintiff’s pre-litigation claim for a profit bonus is inconsistent with the profit bonus he now claims. As this story unfolds, the audience will be able to discern for itself that the agreement is fictitious. And by the time the pre- and post-litigation inconsistencies in the alleged agreement are revealed, the audience will likely conclude the plaintiff is a liar. There is no need to say so explicitly, and doing so will make the defense brief sound shrill and exaggerated.
This concept is especially effective when the temptation arises to trash the plaintiff’s brief for factual inaccuracies. One approach in such circumstances is to baldly accuse the plaintiff of misstating the record in an intentional effort to mislead the court, an oft-used and ineffective technique that may even implicate an attorney’s ethical obligations to report misconduct. See Model Rules of Professional Conduct 3.3(a)(1) (lawyer shall not knowingly make a false statement of material fact to a tribunal) and Model Rules of Professional Conduct 8.3 (mandatory reporting requirement for ethical rules violations). A second and more effective approach is to simply show the misstatement and let the court draw its own conclusions: “Plaintiff claims X is true on appeal. But at trial, the plaintiff specifically testified that X is false. Moreover, all the documents show that X is false.” This approach leaves the audience’s focus of judgment on the plaintiff, rather than on the name-calling defendant. Resist the urge to explain the obvious, and show rather than tell.
A good story starts with the introduction of the protagonist and antagonist in enough detail so the audience can discern the “good guy” from the “bad guy.” It then introduces an inciting incident that begins the rising action and suspense. The story reaches its climax, then uses the dénouement to show how life will be for the characters from now on. Cassady, The Art of Storytelling at 118-121. This structure can be equally effective in an appellate brief.
Recall the hypothetical U.C.C. notice case used above. The key facts in the case for purposes of the notice issue are (1) the Automotive Supplier’s pre-litigation conclusion that the product defect was a result of a design change implemented unilaterally by Automotive Producer, and (2) the subsequent delay before the Automotive Supplier finally decided to file suit. The first few pages of factual background should describe the companies, their businesses, and their contractual relationship. If the Spring Manufacturer has never before had a product problem or been sued, highlight such facts, which scream “good guy.”
The inciting event is the product recall. Suspense can be built by describing the atmosphere during the early stages of the recall investigation. No one knew what the problem was. Everyone was pointing the finger at someone else. Both the Automotive Producer and the Automotive Supplier blamed the Spring Manufacturer for faulty materials, faulty processes, or both. The situation looked dire for our hero.
The climax is the Automotive Supplier’s announcement that the root cause of the problem is the design change. The dramatic effect can be enhanced with direct document quotations and lengthy deposition or trial testimony, all of which will lengthen the number of pages devoted to this key fact. Again, it is not necessary to tell the court how disingenuous the plaintiff’s present lawsuit appears in light of its earlier conclusion as to root cause. Let the audience share the hero’s sense of vindication without editorial comment.
Finally, the dénouement should explain the predicament in which the Spring Manufacturer finds itself as a result of the long delay between the Automotive Supplier’s root cause announcement and its decision to file a lawsuit. Many of the relevant witnesses at both companies have moved on to other jobs. Some may be dead. Even witnesses that can be readily located will not be able to remember the facts and circumstances surrounding the recall with much clarity. And witnesses at the Automotive Supplier will be biased as a result of the interim settlement agreement with Automotive Producer in which the Supplier agreed to pay tens of millions of dollars that would have been earmarked for employee bonuses. Without a single legal argument, the purposes of the U.C.C.’s notice requirement have been revealed, and the revelation is packaged in a narrative that keeps the audience’s interest from beginning to end. Things are looking bright for our Spring Manufacturer.
Even an attentive audience enjoying a compelling story may have difficulty “staying with it” without sign posts to guide the journey. Just as a good trial attorney will use headlines to announce each change in topic when conducting a direct or cross-examination, a meticulous appellate attorney should similarly mark the appellate brief. Any time the factual background runs more than two pages without a sign post or headline, too much space has elapsed. A sign post every one to two paragraphs would not be excessive in a particularly complicated case. In addition to making the information presented more digestible, the sign posts approach allows the audience to discern nearly the entire story simply by skimming the Table of Contents. It also allows the audience to quickly find particularly important parts of the story when the opinion is prepared.
All good stories will contain any exposition or background necessary for a full understanding of the narrative. Cassady, The Art of Storytelling at 47. The appellate story is no different. “Unless a fact is included in the statement of facts, it should not be used in the argument.” Aldisert, Winning on Appeal at 169. Whether explicitly noted or not, the introduction to argument following a good factual recitation should feel almost superfluous, i.e., “Once the facts are properly understood, there is really very little about the law over which to argue.”
This does not mean that only those facts that are strictly related to the legal argument should be included in a background section. While a brief should be brief, it is the facts that give color and context and ultimately turn a factual recitation into a good story. In the U.C.C. notice case, for example, the Spring Manufacturer’s flawless historical production record and the Automotive Supplier’s early performance accusations have nothing to do with the legal issue presented. But they are important for showing that the Spring Manufacturer is the protagonist, and that the Spring Manufacturer was not simply overlooked as a root cause of the product recall, but actually vindicated by its customer, the Automotive Supplier.
It is also critical that the story embrace and explain away the bad facts. Doing so enhances credibility, diminishes the sting, and eliminates an opportunity for the opponent to pounce. In addition, “[p]art of a law clerk’s unarticulated job description is to find critical facts and case authorities that the lawyers have not addressed. Doing so proves to the judge the law clerk’s worth.” Aldisert, Winning on Appeal at 169. If the clerk’s (or judge’s) discovery takes place after oral argument, there is no further opportunity to place the bad fact in context, and the storyteller has lost control of the story. It is much better to have anticipated every bad fact by making it part of a consistent story line.
Obviously, an appellate story must be plausible to be convincing. In other words, “[t]he characters and action should be believable within the framework of the story.” Cassady, The Art of Storytelling at 33. But what does this mean in the context of brief writing? First, annotate, annotate, annotate. Every factual recitation in a statement of facts must be supported by a specific record cite from the trial court. This may mean a citation after every sentence; it may mean multiple citations in a sentence. And every citation must be carefully checked to ensure that no liberties have been taken with the actual record. “Even the most experienced advocates cannot always anticipate accurately what fact an appellate judge will find to be critical. Rather than take chances, it is best to cover all bases with record citations.” Aldisert, Winning on Appeal at 171.
Second, it is time to jettison the strategy of making alternative arguments. Storytellers do not give alternative explanations for why things happened, because doing so diminishes the believability of the story: “The Big Bad Wolf blew down the pig’s house. And if he didn’t blow it down, then he knocked it over with dynamite.” It is similarly unbelievable to assert that the defendant did not breach an exclusive distributor agreement by using a competing distributor, while simultaneously claiming that the plaintiff knew about the competing distributor and did not object, thus waiving any objection.
Third, it is essential to not only anticipate but highlight the implausibilities in a story and explain them. In a case involving an ex-partner’s claim for a share of 2003 company profits, why did the partnership abruptly change accounting methods in 2003 to push more income into 2004? It is not enough to say simply that the change resulted in tax savings; that begs the question, why wasn’t this change made before now? The story must also explain that the partnership was not eligible to make the accounting switch under relevant IRS rules until 2003. This explains away the apparent ill motive and makes the defense account believable. This is another example where the underlying facts may have nothing to do with the legal argument, but have everything to do with the sense of which party plays the role of protagonist.
Elevate the Story Over the Storyteller
In the best storytelling performance, it is “difficult to separate the teller from the story.” Cassady, The Art of Storytelling at 16. This is equally true of the story appellate advocates weave in their briefs and at oral argument. If the audience’s focus is on the storyteller, the story itself will be lost. Advocates need to leave their egos at the door and elevate the story, much as trial advocates must make the witness the focus on a direct examination at trial, not themselves.
The easiest way to accomplish this goal is to follow the above suggestions. Briefs that do more “telling” than “showing,” inaccurately cite the record, and leave out key facts unintentionally invite the focus (and sometimes the wrath) of the panel toward the advocate, rather than the facts. By letting the facts tell their own story, accurately and completely, the attorney ensures that the story receives the panel’s full attention.
“It is not unconstitutional to be interesting,” Aldisert, Winning on Appeal at 168, and it does not violate any appellate rules for a brief to be entertaining. Quite the opposite, clients should expect their appellate advocates to possess the ability to tell compelling stories, both orally and in their legal writing.
Interesting stories are essential in the first instance to keep an appellate panel focused on a case. Judges are drowning in a sea of cookie-cutter and blasé briefs, and a good story is the perfect antidote to boredom. In addition, convincing stories result in a connection or even empathy between panel and party, a connection that will enhance the chances of an appellate victory. At bottom, appellate judges are no different than trial judges in their desire to dispense “justice,” and the law gives them numerous means to reach the end to which justice directs them. Make sure it is your client’s story, not the opponent’s, that cries for justice to be done.
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John J. Bursch is an attorney at Warner Norcross & Judd LLP, where he concentrates his practice in business litigation and co-chairs the firm’s Appellate Practice Group. He clerked for the Honorable James B. Loken on the United States Court of Appeals for the Eighth Circuit and is a member of DRI’s Appellate Advocacy Committee. Mr. Bursch has been elected to the Michigan Bar Association’s Appellate Practice Section Council, and he serves as the D.C. Circuit Editor for the American Bar Association’s Appellate Practice Journal. He regularly practices storytelling techniques with his four delightful children.