When is an appellate brief like a game of chess?

Nate Oman waxes poetic over a well crafted appellate brief in this post over at Concurring Opinions.

An excerpt:

A well written brief has a kind of beauty about it. It will have a unifying structure, a clear skeleton on which the flesh of the argument hangs. Doctrinal arguments and policy arguments will be woven together, adverse precedents will be carefully distinguished without seeming glib or plodding. The writing will be clear and free from jargon (except for the occasional flourish of a Latin maxim). At the end of the brief, the reader will be left thinking, "“The law supports the appellant'’s claim and it is a good thing to, as our law is wise and just and clear."” A badly written brief is all ugliness. The question presented will run on for pages. The argument will be lost in a profusion of points and subpoints, never coalescing into an identifiable structure. Adverse precedents will be ignored or labored over for pages. Doctrine and policy will be left in stark isolation, presenting the judge with the unhappy choice of enforcing a bad law or ignoring the law to reach a just result.

In this sense, an appellate brief is like a game of chess. A person who knows how the pieces move, but has no grasp of how the game is played will push pawns and bishops aimlessly around the board, attacking and defending pieces with discernibleble strategy or plan. Weaknesses in the player'’s position will develop, backward pawns, and hanging material will proliferate as pieces clog the lines of attack of their fellows until ultimately the game sputters to an accidental ending. In contrast, in a well played game of chess each move will fit into a position or plan. There will be identifiable strategic goals and great care to avoid the minor weaknesses that will later flower into catastrophe. The game will utlimately be decided by the execution of a coherent strategy pushed forward by precise attacking combinations.

While I lack his flair for the dramatic (maybe if I could write my opinions with Nate's sort of deathless prose, people would actually read them), I mostly agree with everthing Nate says however, unlike Nate, I don't typically discern the finger of God on the keyboard behind a well written brief, however, I do perceive the intellect and professionalism at work which epitomize the ideal of the legal profession.

Like Nate, I read briefs for a living and like him I thoroughly enjoy a well written brief. Why? Because it is more inclined to grab my interest intellectually and at the same time it makes my job easier. A well written brief presents a party's legal position in a way that stimulates thoughtful consideration of the legal issue(s) presented and challenges the judges who read it to reconsider the implications of the application of existing precedent in light of what may be unintended consequences.

Alas, in my experience, such a brief is the exception rather than the rule. Most briefs are mediocre in the sense that little thought has been given to the best way to present the issues and the legal arguments in the most persuasive way possible. Some appear to be little more than the unstructured regurgitation of aspirational platitudes and generalizations about "fairness" and "justice" rather than tightly reasoned and articulated legal arguments. Any appellate judge will tell you that appeals are as much a part of the adversary process as the trial and therefore they do their best work when they get help from the lawyers in the form of tight, well crafted legal arguments woven into the facts.

It doesn't happen often enough but occassionally, I do see an appellate brief that represents the work of a professional who merits the term "craftsman" and who obviously has coupled an outstanding work ethic with the knowledge of how to package a persuasive and intellectually stimulating legal argument.

As far as comparing brief writing with chess, I used to play quite a bit and after reading Nate's post, I immediately thought of this quote from Grandmaster Savielly Tartakower:

A Chess game is divided into three stages: the first, when you hope you have the advantage, the second when you believe you have an
advantage, and the third... when you know you're going to lose!

On balance though, I disagree with Nate about one thing - writing a good brief isn't like playing a game of chess or any kind of game for that matter. Unlike a game, which is forgotten as soon as it is over, a well written brief is the foundation upon which a lasting structure may be built. Those legal principles that stand the test of time all began with a well crafted brief.