Great Moments in Brief Writing

This semester I'm taking a seminar where each week we argue cases that are currently before the Supreme Court. Each student takes a turn playing counsel, second chair, justice, and justice's clerk so we can see how everything looks from each perspective. It's been a wonderful class--I'm even more convinced that appellate litigation is what I'd like to do, at least for a few years--but there have been surprises as I've gone through these real-life disputes. The biggest one? How disingenuous the briefs filed with the Supreme Court are.

Because the Court takes so few cases and because Supreme Court litigation has become a highly specialized field, the advocates who write these briefs are very, very good. As a result, I was more than a little surprised when I saw this consistent pattern of lawyers making fairly outrageous assertions about the strength of their position. I get that the whole point of a brief is to make your side look as strong as possible, but I don't know how, in almost any of these cases, the attorney can say things like "Basic logic all but compels this conclusion," or "This may be one of the easiest [cases of this type] to reach this Court in some time" (both actual examples). Sometimes the Court takes cases that aren't all that controversial: the point is to clear up an area of law that's vague, for example, and most people agree what the right answer is. But for the most part, the issues presented are hard. No matter what people think when they tune in to listen to the confirmation hearings of a potential new justice, the Supreme Court routinely decides cases where the established law doesn't generate an answer.

So when I come across briefs like the ones I'm reading today, where both sides use the very first sentence of their argument to assert that this is an easy case for their client, I get confused (and exasperated...). By making that misleading and easily verifiable statement up front, you've shot your credibility. Or at least, that's what I'd think if I were the judge. If you're going to confidently assert this isn't a hard case when it obviously is and you have every reason to think the judge knows it is, what other points did you "embellish"? Would it really have been so terrible for the advocate to say, "This is a tough case, and there's no clear answer. But if you go through the argument as I've laid it out, you'll see that the best outcome is a ruling in favor of my client."?

Of course, all this just goes to show that I have no idea how appellate advocacy works. Making these kinds of claims is just par for the course. And I suppose it's reasonable to think I still have a lot to learn, considering I've never actually practiced law.