Via CrimLaw, I see that Jack Chin over at CrimProf Blog (second paragraph) links to this New Jersey Appellate Division opinion in which a defendant had his conviction overturned and Professor Chin notes "I can't help but notice that the wordy and repetitive brief won."
No doubt about it, he did win but I suspect it was in spite of the 104 page brief his attorney filed and not because of it. In the first place, as the court notes in a footnote, the court "reluctantly" allowed the state to file an even longer 109 page responsive brief (apparently lawyers in New Jersey are paid by the word). Moreover, notwithstanding examples like this one and others noted previously here and here, it doesn't seem to occur to some appellate practitioners that it is called a "brief" for a reason. Appellate judges recognize and appreciate that lawyers must do their best to protect their client's interest on appeal and obviously one way to do that is to do what this lawyer did and throw everything against the wall in the hope that something would stick (which here it did). However, an effective appellate practicioner (one whose wins on appeal don't coincide with the occurrence of a total solar eclipse), will understand that the object of the exercise is the persuasion of an audience. Those who are consistently effective persuaders make their point(s) succinctly and get to it/them expeditiously.
Appellate judges read a lot of these things day in and day out and like any human beings, they (and I include myself) are more likely to be persuaded by fewer strong points (four or less) that are thoroughly and logically analyzed against the background of the facts and prevailing law, than anything the members of the audience (remember, these are the folks you are trying to persuade) find "excessively wordy and repetitive." Please note the entire sentence and the one which follows in the opinion:
The excessively wordy and repetitive 104 page 'brief' made it more difficult to discern whether the defendant was advancing any meritorious allegations. After our careful review of the record, however, we conclude that several errors were made....(Emphasis added)For those who missed the cues here, the translation of what the court just said was that the lawyer did a lousy job representing the client's interest by laying out the alleged trial court errors in a coherent way (apparently the deputy attorney general wasn't any more effective for his client but got off a little easier since appellant's lawyer "started it"), so the court went ahead and did what the attorneys were supposed to do (and they aren't happy about having to do so).
The reality is that the burden of persuasion is on the appellant's counsel so if I pick up a brief that looks like the unabridged edition of War and Peace, I am going stop reading and start skimming, because I have a lot more briefs to get through before the day is out. For the same reason, if I can't quickly grasp what is being said I will move on rather than try to puzzle it out. The client here should be grateful that the court did his lawyer's job for him but this is an adversary system which means it is the lawyer's job to effectively fight for the client, not the court's.
Some might smugly declaim appellate judges, when something like this happens but at the risk of getting on my "high horse," the bottom line is that if you want to be persuasive in an appellate court, a trial court or anywhere else, you have to establish your credibility with your audience, give them one or more good reasons to want to side with you and then show your audience how to get there from here.
You can give the lawyer in this case the benefit of the doubt and say that he was thorough but that is not at all the same thing as being effective.
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