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What a Bad Supreme Court Brief:

I just finished reading Williams' brief in U.S. v. Williams, and it's pretty shoddy.

The brief has many substantive and structural problems: For instance, it keeps arguing that the child pornography pandering law is overbroad because the law lacks the proper mental state requirements; but the government argues, quite plausibly, that the law does include those mental state requirements, and the brief never adequately responds to the government's argument. More broadly, the brief spends a lot of time repeating platitudes that are surely familiar to the Justices and law clerks, and far too little time responding concretely to the government's concrete legal arguments.

But for now, let me just point to the less important but more obvious problems with the brief — the remarkably shoddy writing. I quoted the opening sentence of Part I of the Argument below, but here are some more examples:

The Section, as currently drafted, while appearing to one person to constitute an offer or solicitation to sell, buy or barter contraband --- whether true or false --- can appear to another person (listening to the same words of the speaker) to be an offer or solicitation to sell, buy, or barter something totally lawful and therefore, protected by the First Amendment....

Subsections (i) and (ii) of the PROTECT Act pandering provision capture what is clearly child pornography both before and after Free Speech Coalition was decided whether involving actual or virtual child pornography....

However, the Section, as written, addresses not only liability to the offered or solicited material but rather to the ideas and images communicated to the viewer by the representation of what those materials constitute, the First Amendment is necessarily implicated....

And while this Court tries "not to nullify more of a legislator's work than is necessary, ... " (Reagan v. Timer, Inc., 468 U.S. 641, 652 (1984)), when a statute is as overbroad and vague as the Section, and particularly where it affects First Amendment freedom, the more frustrating remedy is to simply let Congress re-write the statute rather than risk speech freedoms of millions of people across the country every day and then burden witnesses, law enforcement, prosecutors, judges, juries and higher courts with trying to sort out the mess created by the Section on a case by case basis....

There are many other such passages. As an editing exercise for a legal writing class, this brief would be excellent. As a brief in the Supreme Court, not so much.

Related Posts (on one page):

  1. What a Bad Supreme Court Brief:
  2. Not the Best Way of Putting It:
Guy:
Incredible.
10.23.2007 4:12pm
Chris Bell (mail):
Uggh, and on such an important issue. This is why we have amicus briefs. The ACLU is going to have to save this one.

A new attorney needs to be selected for oral argument right now.
10.23.2007 4:17pm
Another Cornellian (mail):
What was that about shoddy writing?

"More broadly, the spends a lot of time repeating platitudes...."

Sorry, couldn't resist.
10.23.2007 4:22pm
Benjamin Davis (mail):
Maybe it is. But this made me think of something said by the texas woman lawyer (forgot her name) who argued for the plaintiff in Roe v/ Wade. She spoke at my old law school about the two cases she had argued before the Supreme Court (she won both). She was explaining that after you argue you receive a picture of the court signed by each justice. A person asked her whether one gets a picture when one loses. Her response was, "I am sorry, I just wouldn't know!". So if Williams wins with all these folks saying what they did was bad, I guess the lawyers will be apologizing "all the way to the bank."

Best,
Ben
10.23.2007 4:25pm
Zathras (mail):
On a point related to Ben's post, does a bad brief really matter at this level? At the Court there will be a large number of clerks who can dissect the issue infinitely better than this brief does. Add in the influence of the numerous amicus briefs (amici briefs?), and the influence seems very slight. While it is true that a really strong brief might help the client's chances, there shouldn't be much difference in effectiveness between a passable brief and a really shoddy one like the brief in question. But as Ben says, a win is a win is a win--nobody will be seeing how shoddy the brief is after the fact.
10.23.2007 4:32pm
spider:
1. Ben, why do you refer to her as a "Texas *woman* lawyer" ? [emphasis mine] That seems strange, given that her gender was not part of the story.

2. Your point, "if Williams wins with all these folks saying what they did was bad, I guess the lawyers will be apologizing all the way to the bank", doesn't add much to the conversation. Do you have reason to believe that Williams has a high chance of winning despite the crappy brief?
10.23.2007 4:34pm
OrinKerr:
Zathra writes:
On a point related to Ben's post, does a bad brief really matter at this level?
I believe the answer is "Yes."
At the Court there will be a large number of clerks who can dissect the issue infinitely better than this brief does.
But a brief doesn't "dissect" issues; it advocates for a position. And the better the brief advocates for a position, the better are the chances that the side will win.
Add in the influence of the numerous amicus briefs (amici briefs?), and the influence seems very slight.
I disagree.
10.23.2007 4:46pm
PatHMV (mail) (www):
Of course in theory, the briefs and arguments of counsel shouldn't matter one way or the other. The law is the law, regardless of it is advocated by a good lawyer or a bad one.

BUT in reality well-crafted arguments can indeed persuade judges that one's preferred interpretation of the law is in fact the law.

These are still human beings on the court. Cases are at times resolved on 5-4 splits, with one judge who decides it after wavering around between the two poles. Of course the quality of the brief matters. Nobody's going to lose a case because of a comma splice, but when the writing is this bad, it reflects thinking and argument which is equally bad, and thus unpersuasive.

The lawyer who wrote this brief ought to be ashamed of himself, and too embarrassed to appear in public again. As should the folks on this thread defending such shoddy, substandard work.
10.23.2007 4:49pm
Christopher Cooke (mail):
Eugene,

You might also link to an excellent brief, as a teaching exercise, to say what you liked about a brief, in addition to saying what is wrong with a brief.

My problem with the excerpts is that I really don't know what the author is trying to say. And, I would agree with Orin that a bad brief really does hurt the client, because the lawyer misses a key chance to frame the issues in a way that favors his client. Amici usually focus on some of the issues in a case, not on all of them, so it is dangerous to use them as a substitute. Besides, the lawyer is getting paid to do this work, so he should do it right.
10.23.2007 4:55pm
DJR:
I see that your (quasi-associated) firm hasn't filed an amicus brief (at least not as lead counsel) in this case. Even so, don't you find it at least a little bit in poor taste to be tearing down these attorneys' work in such a public way? It's one thing to disagree with the arguments or to think that they should have addressed matters more substantively. It's another thing entirely to make them look foolish on a widely read legal blog.
10.23.2007 4:58pm
tarheel:

Do you have reason to believe that Williams has a high chance of winning despite the crappy brief?

I do. The law is nothing more than a clumsy attempt to circumvent Ashcroft, and it still ends up being overbroad and vague.

The whole rationale for excluding child pornography from First Amendment protection is that its very production harms children. The law in Ashcroft was invalidated because it swept up material that did not involve any children in its production. Here, someone who "promotes . . . purported material in a manner that reflects the belief, or that is intended to cause another to believe," that the material is child pornography is liable. In other words, if a person somehow "reflects the belief" or tries to get someone else to believe that he has child porn--even if there is no actual material--he is covered. I don't see how that will pass muster.

And don't get me started on how a court/jury might understand "in a manner that reflects the belief."
10.23.2007 5:02pm
Guest101:
Orin,

Could you elaborate a bit on your responses above? Even as a lowly district court clerk, I found that parties' briefs generally weren't all that relevant to the outcome of a case-- even the best of them did nothing more than highlight the contours of the issues and point me in the direction of the key cases, which I would then research on my own and come to a conclusion largely independent of the arguments set forth in the briefs. There might have been a rare occasion in which a party's brief pointed out an aspect to an issue that I wouldn't have thought of otherwise, but it was quite unusual. And I was just one guy with a Westlaw password. I'd have to think that at the Supreme Court level, with the multitude of top-flight legal minds aimed at analyzing an issue, the arguments of the parties would matter even less. Obviously you know more about this than I do, but I'd be interested to hear why that's wrong. Is it perhaps because the great majority of the issues before district courts have clear answers that can be discovered by a few hours researching appellate court opinions, whereas issues before SCOTUS often require deeper research into history, statutory and otherwise, and perhaps a broader consideration of the social implications of a contemplated outcome?
10.23.2007 5:02pm
EL SL:
the bar # listed at the end of the brief (#0767967) appears to have a typo -- the florida bar website identifies him as #0767697.
10.23.2007 5:02pm
Alan Gunn (mail):
Zathra wrote:


On a point related to Ben's post, does a bad brief really matter at this level?



When I practiced law, a while ago, I worked on a S/Ct case that was a companion case to another, handled by a different lawyer. (Both involved the same institutional respondent.) That lawyer's brief was so bad that the court dismissed the writ of certiorari in his case as improvidently granted. So it sure mattered in that case! (We won ours, on an argument I considered (and still consider) so weak that I urged the lawyer in charge to take it out of our brief.)
10.23.2007 5:07pm
Eugene Volokh (www):
Another Cornellian: Thanks, fixed it; as you might gather, the blog post was written hurriedly, and without editing, so such glitches can happen. Briefs, on the other hand, are supposed to go through many editing passes, precisely to avoid glitches like this.
10.23.2007 5:11pm
3L:
Try defending it in a law school class, as I was forced to do last semester.
10.23.2007 5:19pm
Specast:
Here's a question for Eugene and/or any other former SCt clerk: in criminal appeals, did you notice a difference in quality between briefs written by prosecutors and those written by defense attorneys? I ask this because my understanding and (very limited) experience is that government-provided defense lawyers have fewer resources than do prosecutors. Prosecutors, especially at the federal level, may also be generally more gifted writers (and attorneys) than their counterparts.

I'm most interested in the writing at the Supreme Court level. In the lower courts, much of the briefing is of routine motions, so the briefs tend to be cut-and-paste jobs.
10.23.2007 5:19pm
Houston Lawyer:
That brief made my teeth hurt. Even if a brief doesn't have to be overwhelmingly forceful, it must at least be intelligible.
10.23.2007 5:22pm
ASDF:
"Overboard" for "Overbroad." At least there aren't any "pubic forum" references.
10.23.2007 5:22pm
An0n:
I don't think Eugene's post is in poor taste at all. Attorneys who produce work this poor deserve to have that work held up to ridicule by the rest of the legal community. Perhaps a little humiliation will encourage them to try a little harder next time, or to decline cases they're incompetent to handle. Frankly, I think Eugene has performed a public service by posting his criticism.
10.23.2007 5:37pm
Anon1234:
Specast, speaking as a former circuit clerk, I can say that I typically found poor briefing in both sides in criminal cases. Defense counsel, however, was probably over-represented in both the worst-of-the-worst and best-of-the-best briefs. The federal public defender’s office rarely (if ever) filed the worst of the worst, and they (as opposed to private practioners) almost always filed the best of the best. In my experience as both a clerk and a private practioner who handled quite a few criminal cases on appeal, the Government often “mailed it in” in criminal cases because they nearly always win. The standard of review is never good for the criminal defendant, and the Government always has lots of good cases to cite since it’s rare that a criminal defendant wins. I don’t think I’ve ever read a brief written by an AUSA that I thought was particularly good.

I would expect at the Supreme Court level, the briefing is usually excellent for both the Government and defendant.
10.23.2007 5:39pm
Alex Blackwell (mail):
Frankly, I think Eugene has performed a public service by posting his criticism.

I think Eugene is owed at least one billable hour.
10.23.2007 5:39pm
Mark Lyon (mail) (www):
They did, at least, come up with the helpful "T4" abbreviation.
10.23.2007 5:40pm
OrinKerr:
Is it perhaps because the great majority of the issues before district courts have clear answers that can be discovered by a few hours researching appellate court opinions, whereas issues before SCOTUS often require deeper research into history, statutory and otherwise, and perhaps a broader consideration of the social implications of a contemplated outcome?

That's pretty much right. It's hard to generalize, but Supreme Court briefs tend to have a significant normative emphasis. They present an argument for what the law should be as much a descriptive argument for what the law is. Most of the issues are really hard, touching on some ambiguity in past decisions that leave the legally correct answer at least somewhat uncertain as a matter of text, history, etc. So a brief that expertly explains what the law is will go only part of the way there.
10.23.2007 5:41pm
Tony Tutins (mail):
The sense of each sentence gets lost in the middle. Even in district court, you don't want the judge saying Hunh? all the time.

If I could draw an analogy, this statute would prosecute street sellers who tried to pass off oregano as marijuana. Back in the 70s, the National Lampoon ran a naughty photospread of obvious midgets fooling around. The accompanying text unsuccessfully described them as children, and finally admitted they were midgets. I guess the NatLamp editors and publishers would be going to jail these days.
10.23.2007 5:46pm
OrinKerr:
Specast asks:
[I]n criminal appeals p[before the Supreme Court], [is there] a difference in quality between briefs written by prosecutors and those written by defense attorneys? I ask this because my understanding and (very limited) experience is that government-provided defense lawyers have fewer resources than do prosecutors. Prosecutors, especially at the federal level, may also be generally more gifted writers (and attorneys) than their counterparts.
Here's my 2 cents. DOJ briefs are almost always solid. They're not necessarily stellar, but they usually cover the bases in a solid way. State briefs and defense attorney briefs are mixed; it all depends on who wrote them. There's a real variation in their quality on both sides. Again, just my 2 cents.
10.23.2007 5:48pm
Bruce:
Yikes. From the first sentence of the argument: "While Congress has the power to proscribe offers or solicitations to transact in illegal narcotics or other contraband . . . , the language crafted by Congress in 18 U.S.C. § 2252A(a)(3)(B)1 falls short of this Court’s jurisprudence on overbreadth and vagueness."

That's exactly the sort of thing I circle in student writing. How do you fall short of jurisprudence?

This is not just nitpickery either. Once you start trying to fix that inapt metaphor, it leads to a lot of rewriting. (E.g., the statute falls short of the *standards* identified by the Court for overbreadth and vagueness -- which naturally leads to the question, what standards? How does the statute fall short? And what's the connection to contraband? Etc.)
10.23.2007 5:49pm
Prosecutorial Indiscretion:
To add to what Orin said, lowly trial grunts (like me) are kept far, far away from the Supreme Court work. The SG's office and (as I understand it) the big brains in the appellate sections handle that. The actual prosecutors, gifted as they may be, have minimal if any input into the Supreme Court-related work.
10.23.2007 6:15pm
OrinKerr:
Commenter "public_defender" writes in with the following very interesting comment that I haven't had time to verify, but that seems quite important if true.
I think [Eugene]> missed a good reason why the Williams brief is so> bad--it just doesn't matter to the defendant.

The defendant is serving two concurrent sixty-month
> terms. He won a reversal of one of those two counts
> in the court of appeals. The court of appeals
> rejected his sentencing appeal of the other count.
>
> The Government appealed, but the defendant will
> serve the same sixty months regardless of whether he
> wins or loses this appeal.
>
> This case illustrates the hazard of accepting a case
> that is irrelevant to one of the parties. As a
> lawyer with about 50 cases that matter to my
> clients, I can see why I would spend a lot less time
> on a case that could not possibly help the client.
> Of course, that doesn't justify a bad brief in the
> Supreme Court of the United States, but it could
> explain it.
10.23.2007 6:18pm
CrazyTrain (mail):
I ask this because my understanding and (very limited) experience is that government-provided defense lawyers have fewer resources than do prosecutors.

My experience clerking on both the appellate (not Supremes) and trial court level in the federal courts is that this is generally true. However, I also found that 9 times out of 10, government-appointed counsel was better than retained counsel in criminal cases.

Prosecutors, especially at the federal level, may also be generally more gifted writers (and attorneys) than their counterparts.

Again, this is generally true for some districts but not true for others. Those who clerk on the 9th Circuit will know the difference between the quality of the AUSA's in CD Cal and ND Cal vs. their counterparts in SD Cal. and D. Nev. among other districts. Also, federal public defenders are generally of a high quality in certain districts.
10.23.2007 6:22pm
Sean M:
I'm curious:

Who are the attorneys in this case? Is this the guy's trial attorney who is now taking it up to SCOTUS? I am certain some hired guns or even pro bono groups would die to have this case. How did they get it?
10.23.2007 6:29pm
c.f.w. (mail):
Keep in mind the fee for this sort of work - say $5000. Let's see all the VC whiz kids do the state of the art SCT brief on that sort of a budget, with a statute as convoluted as this one.

And also take the despised child pornographer's side of the case, please, not the business side before a pro-business court, or the SG position (which wins say 60% of the time).

EV needs to show some tact.
10.23.2007 6:31pm
Constitutional Crisis (mail):
At least he has counsel, unlike criminal defendants in many other countries -- and, as some would have it, some detainees in this country.
10.23.2007 6:31pm
ronnie dobbs (mail):

Keep in mind the fee for this sort of work - say $5000. Let's see all the VC whiz kids do the state of the art SCT brief on that sort of a budget, with a statute as convoluted as this one.

And also take the despised child pornographer's side of the case, please, not the business side before a pro-business court, or the SG position (which wins say 60% of the time).

EV needs to show some tact.


If you can't do a good job for $5,000, you should either (i) not take the case or (ii) lower your hourly rates.

I bill at $225/hour as a 4th year associate in a mid-sized firm. I would like to think that I could churn out a reasonably coherent brief (certainly better than the piece of crap Williams' lawyer came up with) in 22.22 hours of work. It's not like he had to go digging for obscure precedents or legislative history--this is a 1st Amendment case based on a fairly recent federal statute.
10.23.2007 6:39pm
Dave N (mail):
I agree this is an important legal issue. I further agree that the writing in this brief is awful. The authors of this mess are readily discoverable by going through the link to the actual brief--but this was not a case of EV saying, "Look how bad John Doe writes a brief."

While this is an important legal issue, I also note that the Supreme Court's resolution will have little, if any, practical impact on Mr. Williams. His brief notes thathe was sentenced to concurrent terms of 60 months in prison on each of the two counts--but only the conviction for Count I is before the Court.
10.23.2007 6:40pm
c.f.w. (mail):
"If you can't do a good job for $5,000, you should either (i) not take the case or (ii) lower your hourly rates.

I bill at $225/hour as a 4th year associate in a mid-sized firm. I would like to think that I could churn out a reasonably coherent brief (certainly better than the piece of crap Williams' lawyer came up with) in 22.22 hours of work. It's not like he had to go digging for obscure precedents or legislative history--this is a 1st Amendment case based on a fairly recent federal statute."

$5000 is a grossly low sum for all the drill involved in a USSCT case. Ask anyone who has done it. That is $5000 as a flat fee for merits brief, reply brief, plus showing up in court. I suspect you could get, say, 1/4 through the opening brief before you ran out of funds at $225 per hour. Sign up to represent a child molester and see how easy it is to get folks like Ted Olson or EV to work on the brief with you for free (not easy).

Recall we have inequality of wealth in the US, which is substantial, and should not be forgotten by folks like EV.
10.23.2007 6:53pm
visitor from Texas (mail) (www):

Do you have reason to believe that Williams has a high chance of winning despite the crappy brief?


Actually, in some cases a bad brief is better than a good one, in that those reviewing it will invariably say "the arguments are better than this" and then make the better arguments themselves, in ways that are more persuasive.

I've used that method (though only once) with great success where the actual case was weaker than it looked. The state's brief was solid and workmanlike and the court of appeals overturned the conviction, which would not have happened otherwise.
10.23.2007 7:08pm
Constitutional Crisis (mail):

Actually, in some cases a bad brief is better than a good one, in that those reviewing it will invariably say "the arguments are better than this" and then make the better arguments themselves, in ways that are more persuasive.

Brilliant. Maybe unethical, but brilliant. And I don't doubt that it's true. Lawyers/clerks/judges love to one-up each other.
10.23.2007 7:10pm
Public_Defender (mail):
I appreciate that Professor Kerr passed on my earlier comment. Unless there's some additional collateral consequence for trading the material as opposed to mere possession, this case doesn't matter to the defendant/respondent.

The attorney could spend his entire oral argument trading Italian hand gestures with Justice Scalia and the result would be the same--60 months in prison and registration as a sex offender.

The only reason to submit a quality brief is pride and reputation. For that reason, I think these attorneys made a big mistake. If they had done a good job, they could have joined the elite ranks of successful SCOTUS attorneys. That could only have helped their careers and their future clients.

Maybe they thought they could annoy the Court into dismissing as improvidently granted. Basically, I read their brief as saying:


"This case doesn't matter to Respondent. This Court can rule anyway it choses.
"Respectfully submitted,
"[Attorneys-who-will never-practice-in-SCOTUS-again]"


But if a dismissal was their goal, they should have asked for it directly.
10.23.2007 7:14pm
Eugene Volokh (www):
c.f.w.: If you give me a Supreme Court case to brief and argue on the merits, I will gladly invest a huge amount of free time and effort into it. Jeez, it's the Supreme Court!

My one reservation is that I might feel obligated to instead pass the case along to someone who is more experienced at such matters than I am, but who is also willing to do it for free (and again there'd be very many).
10.23.2007 7:16pm
John87 (mail):
Sure, this brief is bad, but I also get the feeling that EV does not spend a whole lot of time with lawyers who are--shall we say--in the middle of the lawyering bell curve. Maybe these lawyers did not try particularly hard, or maybe they were out of their depth. In either case they should not have taken on this assignment.

However, I wish EV would have pointed out that this is only a bad brief for the Supreme Court of the United States. I worked as an intern for my home state DOJ this past summer, and there were plenty of opposing briefs worse than this one. This country is filled with average lawyers who write average briefs. This is surely up to that threshold.

Still, as it was submitted to the Supreme Court, EV was fully justified in picking it apart. I just don't think he should act so surprised.
10.23.2007 7:29pm
OrinKerr:
c.f.w. writes:
Let's see all the VC whiz kids do the state of the art SCT brief on that sort of a budget, with a statute as convoluted as this one.
I don't know if the comparison is a fair one, but my fee for the briefing in Scott v. Harris last term was $5,000 cheaper than the $ 5,000 you claim these attorneys received.
10.23.2007 7:47pm
MJG:
This is a pretty horrible brief. Aside from the typos and basic errors ("cannon of construction"), almost the entire thing pleads with the Court to affirm the Court of Appeals because of the horrible results that would flow from . . . Respondent's own tortured and implausible reading of the statute which neither the Court of Appeals nor the government actually contend.

In any event, the one saving grace here (besides amici) is that the Court of Appeals's decision under review is pro-defendant and is uncharacteristically long, well reasoned, well written and serves as Williams' merits brief, really.

I'd be very interested in Eugene's take on the likely outcome in this case. Tom Goldstein of scotusblog seemed fairly convinced that the criminal defendant would win as this would play out as a repeat of Free Speech Coalition, but I (and I am not a first amendment scholar) think that the Court is really going to trip up on:

(a) That the so-called "protected speech" that the statute covers (i.e. when people profess to be trafficking in actual illegal child pornography but only have synthetic pornography) that this would lose protection because it is falsely advertising contraband, and

(b) Even if the statute covers some protected speech, the speech it covers does not appear to be "substantial," at least when compared to Free Speech Coalition, where owning a copy of American Beauty or Traffic made you guilty of a federal child pornography offense or if you owned benign materials that, somewhere previous in the chain, had been advertised as child pornography. Here the biggest concern that the Court of Appeals raised was that someone who attempts to trick someone else into clicking on a link in an effort to make them think it was actual child pornography while, in reality, it was not, would be covered. I think the Court of Appeals overstated the case here, but that does not seem "substantial" in comparison to the "Romeo and Juliet" arguments that appeared to persuade Kennedy in Free Speech Coalition.

But those are just my thoughts.
10.23.2007 7:50pm
one of many:
Yes, very badly written. I gave up when it appeared to be arguing that the law was overbroad because people who only thought they were trafficing in banned pornography with the intent to traffic in banned pornorgraphy might be covered by a reading of the law despite the items not actually being banned (or I think that was what the brief was arguing, not really positive).

Styilistically I dislike it too, with this much precedent the arguments should flow: judicial standard, petitioners argument, reason the petitioners argument fails the standard. While style is not so important as coherence, in cases like this I was taught that presenting the precedent first works better when you are basically defending the status quo.
10.23.2007 8:13pm
c.f.w. (mail):
"c.f.w.: If you give me a Supreme Court case to brief and argue on the merits, I will gladly invest a huge amount of free time and effort into it. Jeez, it's the Supreme Court!

My one reservation is that I might feel obligated to instead pass the case along to someone who is more experienced at such matters than I am, but who is also willing to do it for free (and again there'd be very many)."

1) For EV or OK to walk in the shoes of appointed counsel, they would need to give up their salaried positions and sign on for $75 per hour cases for the rest of their careers. Then see if the $5000 per case deal from the USSCT for say 200 hours of work looks good. Appointed lawyers are making say $60,000 per year, for self, wife and family. The Williams lawyer probably farmed the brief out to some law clerk.

2) Lots of not too good lawyers will volunteer for USSCT case work, but how many good ones signed up for Williams? None, from all we can tell.
10.23.2007 9:26pm
BruceM (mail) (www):
I have not read nor even looked at the brief, but from the samples shown above, they don't seem all that horrible to me, let alone worthy of a blog post on how bad they are, ditto with the sentence in the previous post. It seems the author of the brief just likes to be very precise in his writing, nipping his own sentences from being used against him by opposing counsel or taken out of context by offsetting those arguments, or making one's own writing more precise with parentheses or offsetting with dashes. I bet there are a whole lot of footnotes in the breif, too.

I don't see any grammatical errors and I have not heard one explanation as to why anything cited is wrong, grammatically improper, or how it could be better written.
10.24.2007 2:25am
NickM (mail) (www):
This is horrendous writing. Most decent lawyers don't have first drafts that look this bad.

On another note, would you feel confident that a lawyer who writes that poorly didn't waive issues by failing to present them?

Nick
10.24.2007 2:28am
Eugene Volokh (www):
c.f.w.: Well, you did say "Let's see all the VC whiz kids do the state of the art SCT brief on that sort of a budget, with a statute as convoluted as this one"; I said I'd take you up on the offer.

BruceM: Let's just start with the first item, "The Section, as currently drafted, while appearing to one person to constitute an offer or solicitation to sell, buy or barter contraband –- whether true or false –- can appear to another person (listening to the same words of the speaker) to be an offer or solicitation to sell, buy, or barter something totally lawful and therefore, protected by the First Amendment...." The Section appears to one person to constitute an offer? What's "true or false"? This is not just cumbersome and confusing; it's also syntactically wrong.
10.24.2007 2:48am
Can't find a good name:
My favorite error is the citation to Reagan v. Timer, Inc., known to those not using spell check as Regan v. Time, Inc.
10.24.2007 3:10am
BruceM (mail) (www):
Eugene: I have not looked at the brief to see in what context that sentence is used, so I assume "Section" means section/subsection of the relevant criminal statute. It looks to me as though he is saying the statute is overbroad and criminalizes constitutionally protected actions/speech. The offer/solicitation made by the defendant is what is either true or false. That seems quite clear to me.

I think he is saying that whether the words spoken by the defendant are in fact meant to be criminal or innocent are subjective with respect to the speaker (sure, a hollywood actor saying the same words in a movie doesn't mean them to be criminal), and whether the speaker means them or whether the recipient believes them to be criminal, is either not relevant to the overbreadth analysis (that sounds plausible if not correct to me).

I may be wrong, I have not read the brief and I don't know much about this case... in fact everything I know about it is from this post. But for random excerpts from an appellate brief, they don't seem any more nuanced than any other legal writing I see on a daily basis (not including my own).

It very well may be a bad brief, it looks like case styles were misspelled and the attorney even mis-typed his own bar number. But I don't feel confused by the sentences you quoted.
10.24.2007 4:25am
andy (mail) (www):
". . .Thus, the Section touches protective speech."

Ah, yes. It is good to know that advocates must establish that the speech of their client is "protective," rather than protected.
10.24.2007 4:29am
BruceM (mail) (www):
Andy: Yeah, that's pretty bad actually, protective vs protected.
10.24.2007 5:07am
NickM (mail) (www):
"the more frustrating remedy"

Somebody needs to talk to Respondent's counsel and imitate Inigo Montoya.

Nick
10.24.2007 5:58am
Public_Defender (mail):
It's nice to see that so many attorneys are so altruistic when it comes to taking over cases in the US Supreme Court. If I get lucky enough to get a case in as a Petitioner (or unlucky enough to get a case in as a Respondent), I would love to be able to set aside a month to do nothing but write the brief.

The help I would really need is to have those altruistic attorneys take over the rest of my docket for that month. If altruism and public service (rather than the prestige of arguing in SCOTUS) is their goal, they can write the eight other briefs in the state court of appeals, do two to six oral arguments, and handle the gazillion other small motions and matters I would have to do during that month.
10.24.2007 6:35am
Ralph Phelan (mail):
"Sign up to represent a child molester and see how easy it is to get folks like Ted Olson or EV to work on the brief with you for free (not easy). "

This guy doesn't need Ted Olson. He needs a copy editor and a high-school English teacher.
10.24.2007 10:32am
Eugene Volokh (www):
Public_Defender: No-one, I think, has said anything about altruism. The point, if anything, was nearly the opposite: Even without relying on altruism, a busy and underpaid lawyer in this situation has two options -- put in the extra time to make the brief good, or, if he lacks the time, energy, or inclination, pass the case along to someone who will write a good brief.

The second option may be unavailable in cases at other levels, but it is certainly available for Supreme Court merits cases. And therefore there's no excuse for filing a badly written brief in such a case.
10.24.2007 11:42am
Tony Tutins (mail):
EV said:

c.f.w.: If you give me a Supreme Court case to brief and argue on the merits, I will gladly invest a huge amount of free time and effort into it. Jeez, it's the Supreme Court!

Hell yeah. I had a prof whose ego still fed off the three cases he argued in front of the Supreme Court, thirty years previously.
10.24.2007 11:44am
markm (mail):
IANAL, but I'd think that if you were defending someone who was doing something akin to selling child pornography, one had better make it impossible for the judge to miss the point of your brief. The writing in that brief certainly doesn't do that.

It may not matter to the defendant, since it appears his guilt on another charge is not at issue and he'll serve 60 months in any case, but it could certainly matter if a bad brief allows a bad precedent to be set.
10.24.2007 1:53pm
Federal Dog:
" would like to think that I could churn out a reasonably coherent brief (certainly better than the piece of crap Williams' lawyer came up with) in 22.22 hours of work"


22.22 hours? I cannot imagine giving any brief so little time and effort.
10.24.2007 6:37pm
neurodoc:
spider: Ben, why do you refer to her as a "Texas *woman* lawyer"? [emphasis mine] That seems strange, given that her gender was not part of the story.
Maybe because he "forgot her name," and the closest he could come was geography ("Texas") and gender ("woman"), which does limit the number of possible suspects considerably, doesn't it? (He might have said whether she was a blond, brunette, or redhead, but hair color is more likely to be inconstant than gender. Why look for hidden meaning, when so straightforward a one is there in plain view and there is no reason to suspect another?

John87: This country is filled with average lawyers who write average briefs. This is surely up to that threshold.
I expect that you made the late Roman Hruska smile from the Great Beyond.
10.24.2007 7:33pm
neurodoc:
spider: Ben, why do you refer to her as a "Texas *woman* lawyer"? [emphasis mine] That seems strange, given that her gender was not part of the story.
Maybe because he "forgot her name," and the closest he could come was geography ("Texas") and gender ("woman"), which does limit the number of possible suspects considerably, doesn't it? (He might have said whether she was a blond, brunette, or redhead, but hair color is more likely to be inconstant than gender. Why look for hidden meaning, when so straightforward a one is there in plain view and there is no reason to suspect another?

John87: This country is filled with average lawyers who write average briefs. This is surely up to that threshold.
I expect that you made the late Roman Hruska smile from the Great Beyond.
10.24.2007 7:33pm
neurodoc:
visitor from Texas: Actually, in some cases a bad brief is better than a good one, in that those reviewing it will invariably say "the arguments are better than this" and then make the better arguments themselves, in ways that are more persuasive.
Constitutional crisis: Brilliant. Maybe unethical, but brilliant...
What is brilliant but unethical, or possibly unethical?
10.24.2007 7:41pm
Public_Defender (mail):
EV writes:


Public_Defender: No-one, I think, has said anything about altruism. The point, if anything, was nearly the opposite: Even without relying on altruism, a busy and underpaid lawyer in this situation has two options -- put in the extra time to make the brief good, or, if he lacks the time, energy, or inclination, pass the case along to someone who will write a good brief.

The second option may be unavailable in cases at other levels, but it is certainly available for Supreme Court merits cases. And therefore there's no excuse for filing a badly written brief in such a case.


Your statement reflects very negatively on the dedication of regular the SCOTUS bar. When I've spoken to local lawyers who have gotten cases into the US Supreme Court, they have unanimously described the regular SCOTUS bar as a bunch of self-serving, back-stabbing vultures.

Too many regular SCOTUS practitioners are only in it for themselves. They only want to "help" if it means they get to argue a SCOTUS case. In reality, that means they will only help when it serves themselves. For those of us in the business of serving clients, that's a red flag. You can write a brilliant brief that does not advance your client's interests.

There are some fantastic SCOTUS practioners who really do want to help. I've found a few of them to help with cases in the cert petition stage. But there are enough SCOTUS bar vultures (including some on national advocacy groups) to keep local lawyers wary of offers of "help."

One thing the regular SCOTUS bar could do to help the non-regular SCOTUS practioners is to help lessen the non-SCOTUS load while we are working on the brief. If there goal is to help produce a better brief instead of getting face time with the SCOTUS, they should be happy to handle a few routine cases to give the local lawyer the time to write a better SCOTUS brief. Even if that wasn't possible, if you've volunteered to handle a few dozen regular appeals pro bono in the past couple of years, I'd be a lot less suspicious that you were only in it for yourself. Experienced SCOTUS bar members could also help by making themselves available before cert has been granted. Blog posts are one way to do that (like Scotusblog and this blog). Another way is through professional listserv and email lists.

I'm in a similar situation in the smaller pond of my state high court. I regularly practice in that court, and I often deal with lawyers who are struggling in that court because they aren't familiar with it. I bend over backwards to help other lawyers who do not regularly practice litigate their cases there without trying to take over cases. Also, on a near-daily basis, I answer calls from lawyers about cases in all levels of the system, so they know I'm there when they need behind-the-scenes help. If I think a lawyer isn't up to the job in a state high court case, I work to arrange amicus support. We can't always to that, but we try.

As an example of the right way to help, I regularly keep members of my state criminal defense bar apprised of high court cases and issues that I think are ripe for review. In the past year, a lawyer contacted me with a case that had one of the issues I thought was ripe. I sent him materials for his cert petition, and I filed an amicus in support of his cert petition. When the case got in, I filed another amicus. He then voluntarily offered me half the oral argument. Why? It was partly because I made it clear I knew my stuff, but it was also because I was helping him from the beginning--giving him ideas to help his client and helping him get his case in.

Those are the kind of relationships SCOTUS practioners should be cultivating.

In general, if experienced SCOTUS lawyers want to help inexperienced SCOTUS lawyers, the approach needs to be, "How can we help you best argue your client's case?" If I get a case in and you call me to say, "You're not up to it, withdraw from the case, and let me take over," I'll hang up. If that happens a few times, I might just stop answering the phone. I wonder if that's what happened in this case.

It's amazing that lawyers who claim to be so good at persuading SCOTUS justices can be so bad at persuading local attorneys.

In the end, this case is the perfect rookie case--no lawyer can hurt the client. Lawyers who were afraid that the Respondent's lawyers weren't adequately protecting the rights of other potential defendants could have filed amicus briefs. But the lawyers who wrote the bad brief didn't hurt their client.

I'd be much more concerned if the lawyers filed a bad brief in a case that mattered to their clients. Filing a mediocre brief in a case that doesn't matter is an easily forgivable sin.
10.25.2007 8:13am
Public_Defender (mail):
Here's one other possible explanation for the bad brief.

Judges get mad when lawyers waste a court's time with issues that won't change anything even though there is a technical issue at stake. On the flip side, lawyers get annoyed when courts waste our time.

I wonder if the brief was the lawyers' way of telling the Court:


You wasted our time by accepting this irrelevant case. You made our client's life worse by putting an even bigger spotlight on him. We don't have an interest in making your decision easier. Our client doesn't have an interest in making your decision easier. Knock yourselves out.
10.25.2007 8:24am
Public_Defender (mail):
Sorry for the triple post, but here's one more way experienced SCOTUS counsel could help. Watch state high court and federal court of appeals opinions. When you see a cert worthy issue, call the losing lawyer and offer to help.
10.25.2007 8:49am
Mr_Thorne (mail) (www):
Set in Style has this post about what Volokh calls the "remarkably shoddy writing" of the Williams brief.

The conclusion? Counsel somehow submitted a draft of the brief, rather than the final version.
10.28.2007 2:07pm