In recent years, the amount of time lawyers spend in court and talking to judges has shrunk. As a result, an attorney’s credibility with judges has become increasingly important. Likewise, presenting clear, concise briefing and arguments helpful to judges and their staff has become critical. Rachel Stinson of Wright Close & Barger in Houston has a unique perspective on both issues, having spent time in private practice and as a staff attorney at a state court of appeals and a federal district court. Rachel shares with Jody Sanders and Todd Smith how her extensive experience taught her to hone her credibility in terms of writing and how to make arguments in a way that help the decision makers do their jobs. They also discuss how changes in technology—particularly the impact of digital records—has streamlined appellate and trial practice.
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Building Credibility as an Appellate Advocate | Rachel Stinson
Our guest is Rachel Stinson from Wright Close & Barger in Houston. You may know her from another friend of the show, Raffi Melkonian, who is one of her law partners. We have Rachel on here to talk about her different background in practice. Rachel, thank you for joining us. We’re glad you’re here.
I’m thrilled to be here. Thanks for the invitation.
For the people reading who don’t know you, can you tell us a little bit about yourself, your background and how you came to be where you are?Federal courts write a ton on everything, which puts a lot of stress on the chambers. Click To Tweet
I’m a native Texan. I went to the University of Texas. Like a lot of people, I did not intend to be a lawyer. I have a background in Art History. After graduating from UT, I went to New York for a couple of years to work in an auction house and an art gallery. Doing that, I realized that one, that’s not a great way to make a living and two, I was going to need to go back to school to get a PhD. In the process of thinking about that, I realized that while running the gallery and the business of art, I had been reading contracts for fun. The insurance policies, the import-export agreements, the mechanics of how art gets shipped around the world from one place to another and what happens when something goes wrong. I found that fascinating.
A couple of times my boss even said to me, “You know that we want to sell the art. You get that.” I found the mechanics of, “We need to make sure that we know what we’re doing before we send this piece off. Do we have all of our bases covered?” The shifting of risk was what I later learned that to me was as fascinating as the art that I was working with. Law school became a possibility and that’s when I decided to start looking around. I had no preconceived notion of what a lawyer was. I’m a first-generation lawyer. My dad’s an accountant. My mom’s an elementary school teacher. They were the first people in their families with college degrees. I started looking around and I ended up choosing Georgetown because of the geographic location.
It was between New York and Houston. I wasn’t quite sure that I was ready to come home. DC seemed like the perfect halfway point. The opportunity to go to school next to the Supreme Court turned out to be the best possible place. I had a wonderful experience there and that snowballed into an interest in appellate law learning more about it. I honestly didn’t even know you could focus on appellate law at the time. I would come back in summer in Texas and chose a litigation firm, started at Locke Lord. Before my 3L year, I met somebody who had been a clerk at the First Court of Appeals. It’s amazing looking back because I kept saying, “I didn’t even know you could do this.”Effective writing is more than just pretty writing. Click To Tweet
I feel like a lot of my career has been a discovery of jobs I didn’t know existed at the time, talking to people and saying, “That sounds amazing. Tell me more about that.” I’m thinking if that opportunity arose, I would do that. Sure enough, sometimes that opportunity arises. Sometimes it doesn’t but sometimes it does. I was talking to this person about clerking on the First Court and thought he’s raving about it. I sent an application and ended up getting hired there for a year. I was a BA there before I went to Locke Lord. That’s the start of how I learned about appellate law and got interested in it. For the first years of my practice, I would not have called myself an appellate lawyer. I was interested in it and it was something that I was trying to learn more about but it was hard. You would say, “I want to do appellate law.” “Yes, so does everybody else. Get in line. By the way, tell me about your federal appellate clerkship.” “I don’t have one of those.”
It was a journey of learning about litigation as a whole and the practice as a whole. I wouldn’t trade it looking back. Everybody keeps talking about this practice but I don’t know how to switch over to it. It was this gradual learning process. Judge Hanks, the position of a staff attorney came open and that’s when I left the private practice and went to go work for him at the Court of Appeals. From there, it took a life of its own. I thought I was going to work for Judge Hanks for maybe 2 to 3 years but I ended up working for him for ten years in the Court of Appeals and then in federal court before I came back to private practice.
Your first experience working for the Court of Appeals, was that with Judge Hanks also?
I was hired to be Chief Justice Mike Schneider’s briefing attorney but he ended up getting appointed to the Texas Supreme Court by Rick Perry. For six months I was the orphan briefing attorney. I got to work for visiting judges. I didn’t know how much fun that was going to be. I worked with Frank Price who was a gem of a human being. I learned a ton from him about the Houston legal community, not taking your work seriously but not taking yourself too seriously. He would come in, shuffle cards, talk about magic tricks and then talk about the cases.
It was a wonderful way to set the scene of what we were going to talk about was important. That interpersonal relationship between lawyers was also important. Judge Hanks got appointed. I only worked for him for about eight months but I feel like he packed at least a year’s worth of work into those eight months that I got to work for him. It was a great experience. Years later, when the chambers attorney position came up, I applied and was thrilled to be able to go work with him again.
A lot of courts have changed in the last few years. How did the First Court at that time treat briefing attorneys versus chambers attorneys? What kind of jobs were they?
In my term clerkship right after law school, the 14th and a few other courts had a default where every justice had one briefing attorney and one staff attorney. There were a few other court staff attorneys who tackled various motions or perhaps they want a particular docket. The default was that if you had nine justices, then you had eighteen chambers attorneys. A group of law school graduates that would rotate for a year and then a group of much more seasoned practitioners from a variety of backgrounds who were the core backbone of the staff. Briefing attorneys tended to take the easier shorter cases, worked closely with the staff attorneys and then the judges would supervise and mentor both. Sometimes the staff attorney would mentor the briefing attorney but that varied chambers by chambers.You don't win if you cheat to get there. Click To Tweet
When I came back as a staff attorney, it was the exception. The first court did still have a number of briefing attorneys but by that time, it was one of the few places that were still hiring young law school graduates. That’s something that’s been a little bit of a detriment to Texas practice that we’ve gotten away from hiring law school graduates to work in the Court of Appeals. On the other hand, the workload of the Court of Appeals, the complexity and sophistication of the cases, both criminal cases as well as commercial cases has gotten to the point where there aren’t a lot of cases that you could hand off to a briefing attorney and say, “This ought to take you two weeks.” Those cases are few and far between.
That was similar to the relationship when I was a law clerk briefing attorney at the Texas Supreme Court. We worked first-line with the staff attorney because we as new law graduates didn’t know how to deal with a Supreme Court case. The chambers attorney played a huge role. They were the judge’s right-hand person. It meant that you got to develop a close relationship with those folks too. You wound up going to work for Judge Hanks once the federal appointment came through. It says a lot about that relationship that Judge Hanks felt comfortable bringing you over. You see that happen from time to time. Usually, it’s in close proximity to the time that the judge gets the appointment. They’d take the chamber staff with them and suddenly the newbie has no staff. Was there some time in between or was there not when Judge Hanks took the federal bench and you went to work with him?
I was with him at the Court of Appeals as a staff attorney for two years. As soon as he was appointed, I went over to the federal court with him and helped him set up his chambers from day one. He was a magistrate judge first in Houston. He ran that chamber similar to the way he had run it on the Court of Appeals. It was a natural segue for us because it was something that we had been used to doing. As a magistrate judge, you get assigned cases from the district court judges on the civil side. You have a whole different docket on the criminal side. In your civil cases, even though it’s not the appellate pipeline, you have three. Sometimes you have two different source district court judges. That concept of we have this docket, we have these assignments, we need to track them and have a concept of how long it’s taking things to move through the pipeline was something that was adapted from what we had done at the Court of Appeals and what I had learned from my own mentors at the Court of Appeals.Good writing is crucial. It is helpful, but so is a reputation for being a straight shooter. Click To Tweet
How was the transition from going to Texas state law appellate court to a federal district court with federal civil and criminal jurisdiction? How did that process go?
It went surprisingly well. As appellate lawyers or as litigators in general, we’re constantly learning the new subject matter. As a general commercial litigator, sometimes I’d have a real estate case or an insurance case. You were constantly learning new vocabulary and new concepts getting up to speed on the particular case or the needs of your client. That skillset translated going to the magistrate judge chambers. There were a lot of new things to learn, different acronyms but the general idea was the same. Somebody wants to compel discovery or somebody wants a dispositive motion.
You’ve got that framework. You learn the law to put on top of that framework. Even though the subject matter, we sat down and counted one time of the different types of cases we had. At one point when we were in Galveston, he would have 500 new civil cases filed a year. It was amazing the subject matter variety of those cases. The concept, the general framework was always the same. The rules of civil procedure are the same regardless of the subject matter of the case. It’s a matter of keeping up with the acronyms and the new substantive areas that you need to overlay on top of the procedural issues that are going on.
They’re both the judge’s job and the staff attorney’s job. That has a lot of writing emphasis both in federal court and in the Court of Appeals.
I was surprised. I knew cognitively because I had practiced in federal court that federal courts write a lot. They write a ton. They write on everything. That puts a lot of stress on the chambers. It’s simply what you get used to but the amount of writing is even more than in private practice. You don’t worry about clients. You don’t worry about getting your time in. All of the administrative tasks of private practice, you write. You worry about the docket and you write. As much as I would like to see more opportunities for new graduates, the pressure of having to write so many cases does dictate having chamber staff have a little bit more experience.
Alternatively, I’m a big proponent of people who want a break in their practice. Maybe you’ve got 5 or 6 years of litigation experience. People are applying for term clerkships. It’s a pay cut for some people but the experience of being inside of the mechanics of either an appellate or a trial court chamber to see what happens after the motions are filed, the response, the reply, chamber staff is going to sit down and go through that. That’s a fantastic learning experience.
Suppose in a perfect world some of that writing load would be alleviated because of stellar advocacy on both sides in a case. I suspect that there was more work that went into getting it right than just relying on what the parties told the court the law was and what the parties said the facts were too.
I will say from my own experience, good writing was crucial. It was so helpful but so was a reputation for being a straight shooter. There were some briefs or motions that were gorgeous. They were beautiful. They deserve a whole presentation. They chose exactly the right word. It was like reading this literary masterpiece. Were they right on the law? Did I feel like after I read it that I was certain that was the standard overview? Were those cases like, “I don’t know that case. It’s interesting. I’m going to have to look that up.”
There is a huge space. I’m so glad that as a bar, we’re talking about effective writing. Effective writing is more than just pretty writing. There’s got to be a component of the judge looking at the attorney’s signature block and going, “Jody Sanders is on the case. I remember years ago when we had that case. He was honest with me about what was or wasn’t in the record. I’m glad to see that this guy is back because I have a bunch of questions for him about this case.” That was one of the things that made me want to go back to private practice. I’ve seen a lot of good and bad, effective and not effective lawyering. I missed it.
Your other guests have talked about appellate lawyers. Our main function is to talk to judges. That’s a lot of what career law clerks do and that’s something that I’ve always enjoyed doing. Not necessarily pulling the wool over somebody’s eyes because that’s not nearly as satisfying as having an honest discussion about difficult issues. Talking about what the law is or is not clear on, what that case does or does not say and reasoning together to come to an outcome that is in keeping with the jurisprudence of Texas. You don’t win if you cheat to get there.
I wish more lawyers would adopt that view, frankly, not so much in our practice area but on some of the work products that I see a day in, day out. Most folks are cognizant, the need to not tarnish their reputation by overstepping or misrepresenting. I still see it too often. You’re right, Rachel. We are seeing an increased emphasis on written work product in the law, even the time that we’ve had in 2020 being in a pandemic. This might be debatable but it’s made it even more important because of your oral presentation. You’re lacking some of the communication keys that you would ordinarily have, subtle body language, posture and so forth that you can only capture so much on the Zoom screen. I’ve always thought that the written work product was just as important in trial courts as it is in appellate courts. It might be subject to debate but I’d like to hear the other side’s argument.
Good work product can be so immensely helpful. I’m thinking particularly in federal court when there would be a difficult uncommon subject matter that would come up. It often felt like as a law clerk that I was dropped into the middle of somebody’s alphabet soup. I knew the case. I’d been working on it. I’d seen it on my case tracking spreadsheet for months but did I feel like I got what was at issue? Even after I’d read thousands of pages sometimes, no. Lawyers are sometimes afraid to talk down to courts. Surely, he gets what this is about. Maybe he doesn’t. He or she does. The judge is amazing and brilliant. They’re all great at their jobs.
An introductory sentence about is this is an FLSA case. This is a Fair Labor Standards Act case. Don’t drop me in the middle of an alphabet soup. Why don’t you define the acronym once or twice? I don’t need you to define Mr. Jones plaintiff especially lawyers who specialize in unusual subject matter or highly technical subject matter. It is helpful to people who are coming to the case. “I haven’t picked up my statute book in a while. Can you remind me of what that acronym is maybe on the first page or what’s the basic premise that we’re going to be talking about in your subject matter, the doctrine? Go ahead and drop that case in the site so that everybody can be on the same page.”
We had Judge Costa on. He talked about the same thing. You get an alphabet soup specialized in industries and federal court. He said, “We’re generalist judges. Maybe we’ve had this case or that case. When it’s two paragraphs of acronym after acronym, we’re lost in the weeds immediately because it’s not where we spend our time.”
That rule is not just for specialized subject matters. It works well across the board in cases. One example is motions to compel. That was something that a lot of trial judges are coming up with various procedures to try and cut down or at least streamline dealing with motions to compel. Sometimes the bar is not thrilled by what they feel a little like speed bumps before they can get to hearing on their motions to compel. Judge Hanks at one point, a couple of other district court judges have instituted the discovery dispute letter. Some state court judges have similar procedures where you have to set it up in a page or two to the court to explain, “Here’s what case this is. Here’s what I asked for. Here’s why it’s important. Here’s what the response or objection was. Here’s why that response or objection was insufficient.” Instead of, “Here’s my motion to compel. See attached exhibit A. Clearly, this is the worst thing anybody’s ever seen. It’s totally outraged and I’d like $50,000 in sanctions, please.”
There are more effective ways to do that. It’s hard. I’m saying that as somebody who has done that and is in that world. I know that it’s difficult but it’s a lot more effective for the courts. That’s the background why judges are trying to figure out how we do get lawyers to do that and these pre-motions to compel. These discovery dispute procedures are trying to make it easier. As lawyers, we forget how we sound. That was fascinating. Being a law clerk, I sat through twenty different jury trials and watching the jurors as they would watch the lawyers.
It was interesting to see their reactions as human beings to certain arguments, to certain events during trial and to realize that we know this as lawyers cognitively but to see it brought home that juries do not like it when lawyers come off as jerks and neither do judges. We get used to the idea that this is an adversarial system and become a little adversarial ourselves. It diminishes the effectiveness of the argument. Not only don’t drop somebody in the middle of alphabet soup but take a deep breath and try. Before you convey your level of outrage, walk the readers through what has happened to get you to this level of outrage before starting off a line mad and opposing counsel is clearly a bad person. This is terrible.
The structure of that discovery letter is almost like a lot of us could stand to use that as a model for our motion practice and legal writing generally. You mentioned how many civil cases Judge Hanks had filed. The courthouses are still full. In our present circumstances, that’s not going to change any time soon. Litigation is going to be active for a long time trying to climb out of this pandemic hole. Getting in to educate your judges as quickly as possible about the things they need to know seems critical. That formula that that discovery letter follows, seems like a good guideline.
It was interesting to hear. I would go to CLE as an anonymous lawyer. I had to get my numbers too. Hear people complain about, “These discovery procedures, I can’t believe judge so-and-so is making me do that.” It was interesting. I don’t know if you’ve ever been at an amusement park or something where you’ve seen a rule on a sign like keep your hands inside the moving car as it’s going down the rollercoaster. You’re thinking, “For them to have made that rule, somebody must have done something stupid. Don’t drop water bottles on top of other people’s heads. That rule must have had a genesis somewhere.” The discovery procedures are the same way or any procedure where you feel like as the lawyer, the judge is putting these artificial limitations on your practice.Lawyers love to gossip. The only people who do that more might be judges. Click To Tweet
You know what you’re doing. You’ve been doing this for years. You’ve won these cases. “Who is this so-and-so to come in and come up with these cockamamie new rules that you’re going to have to bill your client?” These judges know that. They were all practitioners. They are aware and sensitive to the idea. That’s going to take another 3 or 4 hours maybe to sit down and write that letter. Even though it’s two pages, it’s not easy to write with opposing counsel. Maybe there’s a reason they did that rather than drive the bar crazy and drive up fees for everybody. The concept of as everybody says, read the judge’s procedures, they’re all different. Some judge somewhere sat down and crafted those. They’re personally attached to them.
They need to be reminded that this is the decision-maker.
It’s like walking in to somebody’s living room and insulting their curtains.
Put your ego aside for a minute. Tailor your argument and your presentation to the needs and desires of not only the system because you don’t have half a day to go and argue a motion to compel. You have 30 minutes maybe. You’ve got to get right down to what the issue is and what the ruling is you’re asking the court to make. It seems almost fundamental. We talk about it in this setting. You get out of the courthouse and listen to arguments. That need is lost on a lot of people because they’re not focusing their arguments in trial courts. Appellate courts are a little different situation but it’s all interesting.
I wouldn’t be as afraid to state the obvious. This is a personal injury case. The medical records are important because I need to establish my client’s actual medical injuries and the diagnosis. Laying it out in a sentence like that. As lawyers, we’re afraid to do that because, we don’t want to be wrong. Two, we don’t want to seem to be talking down to the judge. As fast as a lot of these judges are going and the number of cases that they’re dealing with, sometimes it’s incredibly helpful to do that.
It’s one that as an appellate lawyer sometimes you forget because you’re used to here’s a big thing of briefs. You’ve got the whole record. You can figure out everything that happened but thinking more about a trial court where you’ve got to move a doc along especially in places like Austin and San Antonio where the judge who’s going to hear your motion may not know anything about the case and may never see anything after that day. They get a Friday afternoon set of motions and say, “You’re hearing this on Monday.” That’s useful to have a simple boom, “Here’s what it’s about,” thing.
It has an application on the appellate level because we’ve all read records where we thought, “What are they talking about?” Everybody in the courtroom had an idea, maybe not the same idea but had some concept of their own about the subject matter they were discussing. I have no idea what it was. Those moments where it helps create a better appellate record, even if it’s aside from the effectiveness at the trial level. From an appellate standpoint, it helps the appellate court and it helps the presentation on appeal to nail down. “Your honor, to be clear, we’re talking about economic damages.”
It makes me think a little bit about the statement of the case in an appellate brief, what function that serves. The statement of the case doesn’t quite go that far but it does provide that little one-page, half a page snapshot of the case so that the judges can look at that page and see this is what this case is about. It set their mind to that right frame. They know more or less or have some expectation of what’s coming. It has an application in appellate practice even aside from that.
If you start reading the cold record and you don’t have any context, how do you know where you should be spending your time? You could spend a lot of time reading a one-week trial transcript and have it wasted. We all know efficiency is one of the names of our game. We can’t go back and recreate things or take as much time as the trial lawyers did learning the case. It isn’t possible. It seems like that kind of clarity in being able to express thought not only on the facts but the law so that you get the court up to speed ASAP. It’s a real skill and benefit that we should all keep in mind.
I would be interested to sit down and talk to people who have practiced at different points in time over the last many years. I feel like the advent of the electronic clerk’s record has changed appellate practice both inside and outside the courthouse. There’s still a cost to creating records but the ease with which you can transport a massive clerk’s record on a thumb drive as opposed to when I was a term clerk, even as a chambers attorney, you’d have to walk down to the file room, spin the drawers, check out your big Redweld, sign for it with your life, carry it back to your office. There was a physicality of interacting with that paper and knowing the motion.
An issue with this appeal is about three-quarters through this massive stack of paper that’s bound on sitting on the left-hand side of my desk. I know exactly where it is. That changes when you’re dealing with these PDFs and the links. On one hand, it’s so great. You don’t have to carry around a briefcase for the clerk’s records anymore. It focuses on the importance of helping the court find the page you’re talking about. You don’t have your little favorite color sticky. I had different color stickies for different things and say, “That’s the blue sticky. I got that.” It’s a different type of interacting with the information that makes it key to hone in not just the argument but where it is in the record.
I know a couple of past guests and other people have talked about the concept that waiver or not having something in the record is a hot button issue. There’s a perception in the bar that law clerks, staff attorneys or judges love defined waiver or used to, can’t wait to spring upon some poor unsuspecting practitioner. It wasn’t adequately briefed or you didn’t put it in the record. First of all, that comes from either a misunderstanding or a mischaracterization of the relationship between judges, their staff attorneys and their law clerks. Ultimately, it’s their name at the bottom of the page. It’s their name on the door.
I don’t know many law clerks or staff attorneys that would have had their job for long if they had been pulling procedural shortcuts that their bosses hadn’t signed off on or didn’t fully agree with. “I don’t think that was adequately presented.” It’s the end. It’s sometimes driven by how difficult the issues are to brief properly and discuss. When you’ve been living with a case and it has then become a part of you. Sometimes we don’t do as good a job explaining what’s going on as we think we do in the heat of battle. Someone who comes back to a cold record is not going to know the exhibit you were talking about or the ruling you were talking about, even though everybody in the courtroom at the time thought that they knew what was going on.
That’s what gives appellate lawyers an advantage when they’re coming in. The disinterested observer is they’re not down in the weeds like that. We’ve had a few folks on who have done both trial work and appellate work. They’ll acknowledge that the skills are different. If you’re the guy or the gal who worked the case up from start to finish and took it to trial, you have little fragments in your mind of things that you recall or you think you recall. We’re all human. We make mistakes. Our recollection is not total recall. Folks like us come in. Our task is, “I’m looking at this cold record. I’m trying to discern what’s important and what the court needs to know and distill the issues down to something that can impact the outcome on appeal.”
That’s much harder to do from the trial lawyer’s perspective if someone had been that deeply involved in the case. It’s our semi-regular plug, Jody, for appellate practitioners in this show. There’s another word for that. The expert fault or something like that where you learn so much about a subject matter that you think everyone else knows what you know and you think they understand it the way you do. It goes back to what you’re saying, Rachel, about educating the judges. Even if they have ridge or brief, they’re not necessarily going to understand the law as deeply as you do or certainly not going to understand the facts as deeply as you do.
That’s where our job is critically important. We are the oracles to the appellate judges. This is what’s important. It ties back again too to the notion of you’ve got to have credibility in what you say. To have an appellate judge be inclined to treat what you say with credibility and importance, you can’t buy that. It also is something that takes an immense amount of time to work up to because you don’t come out of law school with that amount of credibility or experience.
It’s one thing I tell young lawyers constantly. I live in Houston, a massive city but when it comes to lawyers, this is a small town. Even for those of us who are first-generation lawyers. Everybody knows everybody. People talk. Lawyers love to gossip. The only people who love to gossip more than lawyers might be judges. They can’t talk about anything. Think about it. They’re in this weird silo. Being a judge or being a law clerk is a weird job. You can’t talk about the kind of stuff that most people are free to talk about in the grocery aisle with their neighbor. What do they talk about? They talk about lawyers. They talk about what you wear. They talk about your writing. They talk about who lied to them. That’s the unfortunate truth.
It is hard to build up your credibility and your reputation over time. It is so easy to lose it with one motion or one argument getting caught up in the heat of battle. You need that good cop, bad cop of at least somebody at trial. Even if they’re not in a purely appellate role of having somebody listen and think, “Is that what we meant to say? Could we say it again? Do we need to hit that question again to rephrase it and bring it? I think we covered it. Could we re-ask that question of that expert to highlight the exact point we were trying to make one more time?”
That’s invaluable to have that other set of ears or eyes looking at your exhibits or listening to the questions that you’re asking and the answers you’re eliciting. To make sure you’re ticking off the things on your checklist that you need so that when you get to your charge conference or a sufficiency review at the Court of Appeals and somebody says, “There was no evidence of this element.” “There was.” “Where?” That’s an interesting conversation.
The notion of being able to take a snapshot of what appellate practice was like at a given point in time. It’s an exciting time to be an appellate practitioner. I wanted to ask you why you thought that.
I didn’t know anything about appellate practice when I was going through law school but I found it fascinating. I knew people loved it. Since I didn’t go to school in Texas, I didn’t know anything about jury charges. I started practicing the granulation broad form. A shift had already happened by the time I arrived but there was still a lot of talk about it. That was a subject. I love jury charges. I get excited about jury charges. It’s an issue that I need to seek out.
If you want to research the various versions of the pattern jury charge, you had to have all the books to compare one version to the next version and see what the changes were. You had to find a red line. You can do it yourself in three minutes. There are free old PDFs. Another big thing I love is unusual sources of research. I’ve got to plug the University of North Texas. They have a portal that publishes old governmental publications. They have all of the old out-of-print pattern jury charge books. It is so much fun. It’s online in PDF form. How great is that? I’m sure there are people laughing when they hear how excited we are about this. It is truly marvelous to have this kind of access to documents, to be able to redline things, to be able to highlight and circle.
I’m a huge proponent. I read Mark Trachtenberg‘s interview. I completely agree with the importance of mixing the visual medium with written advocacy. One thing I highly suggest people do is if you’re talking about a contract or an insurance policy, don’t retype the clause. Do a screenshot, an insert to the actual font and the bolding, bolded as an original. Why not use a picture of the original? It’s so much more persuasive. You have to remember that as much as credibility matters and as much as we all strive for credibility, there are misstatements that get made occasionally either intentionally or unintentionally.
Judges don’t trust everything they read because they’ve been burned too many times. You don’t have to take my word for it that this is what the exception to the exclusion says. Here it is right here, cut and paste, same font, same weird courier, 9.5, expanded so you can read it. Maybe you’ll retype it in a footnote for legibility but show them that you’re not messing with the words. I wish we could do that for cases in a certain way. I don’t know how effective that would be. That was the advent of the whole cleaned up parenthetical and how it was controversial about are you capturing all the edits.
At the heart of that discussion is an important acknowledgement that it is difficult sometimes to summarize accurately. We all strive to do it but the nature of language is sometimes more imprecise than we want it to be. There is nothing better than a cut and paste of the exact image of the thing that you were talking about in the middle of your brief used effectively. I get excited about little things like that, the ability to have electronic clerk’s records, to be able to word search. It sounds like we were all chiseling stone tablets back in the day but it was not that long ago where things like that were not possible.
The word search thing is so nice to be able to type in a term that’s an important term and then you can go through ten volumes of the clerk’s record in ten minutes as opposed to page-by-page as we did back in the stone age.When you walk into an oral argument, give everyone the benefit of the doubt. It's not trial by combat. Click To Tweet
It’s not perfect.
It’s not but it does add that layer of efficiency. I recall being a young lawyer in the later ‘90s. It was not possible to word search or record. You think about the human effort that has to take place to be able to say that there’s no evidence of something or some word doesn’t appear anywhere in the record. I was fortunate that I was starting to catch on to that. Maybe we could apply some technology to this. We had systems at the firm that I was practicing with at the time where we could scan and make things searchable but you had to have special access to get the software. The things that we take for granted were superhuman efforts back in the day.
You expect that there would be some efficiencies that would come along with the advantages that we have technologically, greater demands from clients and so forth. I agree with the notion. It is exciting speaking to someone who has practiced in different settings. As a sole practitioner, I felt like the technology helped level the playing field. It didn’t necessarily give me a leg up. I felt comfortable going against firms of any size because I knew that I had the same information available to me as they did. That’s a great point.
There’s no substitute. It doesn’t do away with the need for advocacy. Drowning the core in a bigger record cannot be a substitute for either preservation below or advocacy at the appellate level. Not just saying here it is in the record but the overall landscape of why this is important and talking about the legal issues. You can’t just say, “It’s in there somewhere. I’m sure you’ll find it.” That is still not going to work.
As we’re getting towards the end, I was curious if you had thoughts on oral advocacy. You saw it both ways. You see it on the Court of Appeals where you have an abbreviated, “Here are your twenty minutes. Get to the point.” You also saw it where you’re trying to persuade the fact-finder. Is there anything that you take away from it that you wanted to share on that topic?
A lot has been said. It’s a fascinating subject. The assumption of good faith both on the side of opposing counsel and the judge is a good recommendation. When you walk into a hearing or when you walk into an oral argument, you need to give everyone the benefit of the doubt. It’s not trial by combat. Your client and the legal issues are incredibly important. I think a lot of judges learn better or will have a more effective experience during your oral presentation if you assume that they’re listening in good faith, that the questions do have a point. I saw sometimes advocates get irritated, “That’s not what I’m talking about, your honor.”
If the judge asked about it, maybe the judge thinks it’s important. It’s being aware of that. If opposing counsel spent their time and their client’s money to work up an issue even if you disagree with it, take a second to acknowledge it, address it, explain why it’s not important and then move on but don’t pretend it never happened because it doesn’t fit within your framework of how you think this case should proceed. That would be something that I would add to the overall body of great appellate and trial level advocacy tips that I’ve seen going around is to go ahead and assume that the questions and the opposing counsel’s arguments are maybe incorrect but they’re met in good faith.
I enjoyed hearing your viewpoints on these things. Thank you so much for agreeing to come to the show and talk with us about this. The idea of what you need to do to build and maintain credibility as an appellate practitioner can’t be emphasized enough. We’ve covered several topics there that will be valuable to our readers. We generally like toward the end of our conversations to ask our guests for a tip or a war story, if they care to share one. We want to give you the opportunity to do that. I’m sure a lot of fodder from your time working for Judge Hanks that you could consider. What do you think?
Here’s what I feel is the most universally helpful tip from a former federal law clerk. A lot of people know this but I’m always surprised by the number of people that don’t. When we go back to being in the courthouse on a regular basis, I would like all practitioners to keep in mind that the federal courthouses are mic’d. You are always on a mic. Please assume that everywhere except the restrooms, everybody can hear everything that you are saying. The same is true when you are calling in for a telephone conference. It is not uncommon for judges to be holding telephone conferences with the audio being piped into the chambers audio. The law clerks, the staff, people are making copies and doing their office work while listening to the hearings that the judge is having on the telephone. Maybe the judges in the courtroom and the courtroom is empty, maybe the courtroom’s not empty.
The judge is having ten other hearings. I heard a lot about people’s vacation plans when they were on hold, whose kid was in the school play, a lot of chit-chat. Most of it was people talking and it was fine. We’d start turning the volume down until it was time for the hearing to start. Sometimes people might have chosen their topics of discussion or they’re phrasing slightly differently if they’d known that their conversation was being mic’d into 50 different people while they were waiting for some other docket matter. They had an entire federal courtroom listening to their stories about fly fishing in Montana. That’s my tip.
That is a great tip. That’s one that doesn’t occur to me. I’m glad you brought that up.
The same is true in the appellate court courtrooms and maybe even the trial courts. Maybe the rule of thumb ought to be if you see a microphone, don’t say anything you shouldn’t.
Don’t say anything at all. Like on Zoom, this is great training for us, great reminders for when we go back in person, if you are anywhere near a courthouse or talking on the phone to a courthouse, you should assume that everybody can hear you and hear what you’re saying. Not just the judge, literally everybody.
That’s a great place to wrap up.
- Wright Close & Barger
- Raffi Melkonian – past episode
- Judge Costa – past episode
- Mark Trachtenberg – past episode
- Rachel Stinson
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About Rachel Stinson
Rachel has significant litigation and appellate experience in both state and federal courts. In private practice, she has represented clients in a variety of matters, including complex commercial cases, personal injury claims, real estate disputes, theft of trade secret allegations, and insurance coverage litigation.
Rachel’s skill in helping courts and clients navigate unique legal issues was honed by a decade working as a permanent law clerk at a federal district trial court and at a Texas intermediate court of appeals.
Rachel is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization.
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