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The write stuff

HOT SPRINGS (via Zoom, anyway) – The Virginia Association of Defense Attorneys forged forward with its annual meeting at The Homestead last week, with a hybrid meeting similar to the Virginia Bar Association’s confab in July.

Part of the meeting was in-person, with about 50 people in attendance, according to President Melissa Katz. Another 100 or so would be watching the CLE sessions online. Not a bad way to salvage a tough situation thanks to the coronavirus.

The theme: “Sharpen your litigation focus.” There are talks on writing, persuasion and oral advocacy, among others.

The kickoff session last Thursday, “Writing to win,” brought together Supreme Court Justice Stephen McCullough, Roanoke Circuit Judge David Carson and Chief Deputy Attorney General Erin Ashwell. With Roanoke lawyer Jay O’Keefe moderating, the group offered tips on legal writing, particularly on briefs that are submitted as part of an appeal or to a trial judge.

“Legal writing is rewriting,” McCullough said, because a lawyer is marshalling a lot of information from cases and a transcript.

And when it comes to citing case law, “Give me everything that’s out there,” he said, observing that if there is no Virginia authority, other states’ cases can be helpful. So can circuit court opinions that are well done.

Advocates should “own up to facts that are against you,” he said. The same is true for adverse authority.

Ashwell noted that a good brief needs to provide context and background, to give “understanding of where we’re coming from.”

McCullough agreed, stating that a lawyer should situate an issue, even if it’s a statutory or regulatory matter, in the broader legal context.

“Spend a little ink setting the scene, then you can make the killer argument,” he said.

At the trial level, Carson observed that the best-written brief may be robbed of its power if the judge doesn’t get it. He counseled lawyers to take the extra time to call a clerk or assistant to ensure the judge has the filing, or ask if it would be OK to send a courtesy copy to the judge, copying everyone, of course.

Carson continued that the best lawyers seek to make complex matters simple and to make the decision-maker’s job easier.

Carson added that providing good organization is a big part of helping the judge do his or her job.

Headings help, as do shorter paragraphs, he said. And proofread. Typos and misspellings are distracting.

Some attorneys use their briefs as an opportunity for snarkiness and a chance to bash opposing counsel, or even the trial judge.

Bad idea.

McCullough said that your opponent may be “a prickly pear who is hard to get along with.”

But returning fire isn’t wise. “You have to put it on the shelf and be the professional,” he said.

Ashwell sounded a similar note in the context of writing a reply brief.

Too often, she said, a lawyer will use the reply brief to focus on why the other side is wrong.

That’s not enough, Ashwell said. You have to say why you’re right. “People forget to make their positive case” in the reply brief, she said.

Above all, don’t forget to ask for what you want. “Spend some time stating what relief you are seeking,” McCullough said.

He said that years ago, when he was a clerk for then-Chief Justice Leroy R. Hassell Sr., he was working on a case and asked Hassell why the court wasn’t sending a case back for a proceeding on damages rather than a new trial.

“Nobody asked for that,” Hassell said.

So pose this question to yourself when writing your argument, McCullough counseled: “What are you asking the appellate court to do?”