What makes a brief hard? The issues? The record? Both? What are the hardest ones you've had to handle?

I think the hardest ones are the badly written ones (on the other side, of course!). You have to spend so much time just figuring out what the other side is arguing, and it's vague enough that you have to answer at least three different things that they could conceivably be arguing just to be safe. A well-briefed case with clear arguments, citations to authority, and, well, complete sentences is comparatively easy to handle, even when the issues themselves are tougher.

I agree that the poorly written defense brief is the hardest to answer.

Next hardest is the defense brief that relies on poorly written judicial opinions, especially old federal stuff.

Which is harder a short, novel issue or a lengthy, well-established one? [By way of example, an interpretation of a statute vs. factual sufficiency in a complex white-collar case.]

It takes me a long time to pick the right font. It must match my mood. Next up is the right music to accompany the writing. Lately, I've been using Pandora (pandora.com) to kick it off, starting off with some ska music.

That's pretty much it. Good font. Good music. The rest is easy.

Proportional or non-proportional?

Depends on the point I am trying to make.

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Originally posted by R.J. MacReady:
Which is harder a short, novel issue or a lengthy, well-established one? [By way of example, an interpretation of a statute vs. factual sufficiency in a complex white-collar case.]

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Well, when I first started, the statutory issue would be the bigger challenge. Now, I'd probably enjoy that more than slogging through a sufficiency point on a white collar case. An intellectual challenge over a logistical one.

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Originally posted by R.J. MacReady:
Which is harder a short, novel issue or a lengthy, well-established one? [By way of example, an interpretation of a statute vs. factual sufficiency in a complex white-collar case.]

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It's always easier to handle something that has well-established law. You just have to find the rules, lay them out, and apply them to your case. The novel issue is harder just because there isn't law on it -- you have to analogize and sometimes just make stuff up, and predict how the court will do the same.

Now, as far as which would be more interesting to handle, that's a whole 'nother kettle of fish. (One more sufficiency of affirmative links and I may go crazy. )

Oh, and JB, I think I prefer Garamond. It gives your brief just that extra flair.

How about some pro se briefs/writs where the defendant is unrestricted by a legal training, thinks outside the box, raises issues for which there is no law, and has all the time he needs?

Something novel every time, please.

The majestic and haunting sound of bagpipe music is the cure for brief writing on tedious issues. it can "transport" you to a higher plain ... really!

JAS

I agree with Andrea.
I just finished a brief that threw some ideas out, didn't really explain them, and failed to cite to anything remotely relevant. It took me forever to write that one.

Now I'm on to one that totally lacks complete sentences and a direct point.

Oh, how I long for a straight forward, no b.s., issue that I can sink my teeth into.

As for white collar sufficiency vs. statutory interpretation, I think I'd rather go for statutory interpretation. I avoid the white collar stuff almost as much as I try to avoid CPS appeals. I�m not a family law attorney or an accountant.

Any statutory interpretation is better than sufficiency. I hate sufficiency claims with a passion. Most of them are pretty simple to write, at least, but I really hate having to do it. Give me a good legal issue any day.

I think the Englishman infected me -- I have bagpipe music playing right now. Uh-oh!

Picking up on the general loathing of sufficiency claims, are there any particular issues that are harder than others?

There goes any reputation I had!! Or maybe it confirms it. Whatever. Thanks, Andrea.

Give me a meaty constitutional or statutory issue over 99.9999% of sufficiency claims. The latter are not hard, just dull.

JAS

[This message was edited by JAS on 09-03-08 at .]

Maybe finding enough in the record to adequately defend Batson claims--although no one did anything wrong. But of late, except in the SCOTUS, Batson has pretty much become a non-issue.

JAS

[This message was edited by JAS on 09-03-08 at .]

As with the other appellate people, hard is a relative term. Some of the hardest briefs to respond to are usually multifarious and so poorly written that you have to spend most of your time just teasing out what the issues are. I just finished responding to one like that and the pain is still fresh.

On the opposite end of the spectrum, sufficiency cases are "hard" simply because after responding to so many of them you find yourself cleaning your office rather than write out another set of facts. Sufficiency is hard because it is so tedious. Likewise, I am avoiding my current brief by posting this response.

For myself, little makes me happier (at work at least) than an issue (statutory or new case law) of first impression with enough time to research it properly.

Now, back to my statement of facts . . .

Congratulations to the new appellate chief in Dallas, Mike Casillas, and the new deputy, Mike Sandlin.

New caselaw can certainly makes things very challenging. Remember Standefer! And, how about Oursbourn? Has everyone got that case down pat yet?

JAS

For those of us in an office where you are the chief of the appellate division, felony division, misdemeanor division, justice court section, juvenile, intake, forfeiture, public integrity, major crimes, . . .; the hardest appeals involve reading the record and wondering why: the indictment was drafted that way, or why didn't the states attorney call both officers on a traffic stop, or what prosecutor prepped the witness on a motion in limine, or in a case where the defendant did not testify, why would the states attorney say anything about not hearing from a witness in closing arguments - and realizing that all of those bonehead decisions were your own.

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Originally posted by John Greenwood:
. . . and realizing that all of those bonehead decisions were your own.

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D'oh! I think it is even harder to brief if you were the attorney below. You will see the record the way you think it is, not the way it is. It is easy to spot when the defense lawyers do this. It's happened to me a couple times.