Common Blunders in Briefs to a State's Highest Court



Don't confuse persuasive authority with controlling authority

Lower court briefs tend to wield authority as if it compels the court to decide your way. In a court of last resort, that doesn't go over so well:

It surprises me how many briefs before the high court cite to intermediate appellate court case law as though it were the law of the land.

Don't confuse importance to you with "importance to the jurisprudence"

I didn't see it at first, but I think there's actually a subtle relationship between that point and her next one, which is about what happens when you write a brief in hyperbole:

Phrases like "unleashing havoc," "travesty of justice" and "nefarious claims" are overly dramatic. A lawyer who writes as though the outcome of her case threatens to trigger the apocalypse achieves the opposite of the hoped-for effect.

This is at one level a basic tone problem. You can watch the eyes of appellate judges dim slightly when an oral advocate "unleashes" a jury argument.

But there's something deeper going on, I think. Texas Supreme Court practitioners are told that we need to demonstrate the importance of our petition for review. If you are not used to thinking about the Court's discretionary review, and only have the narrow perspective of the one case in front of you, it may not be obvious to you how. There's no single answer what we do is thankfully still more craft than science but if you find yourself italicizing an adverb, you're probably on the wrong path.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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