Tag Archives: appeals

10 Tips for Italics in Appeal Briefs

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imagesBryan A. Garner’s The Redbook: A Manual on Legal Style (West, 2d Ed. revised, 2006), offers 10 tips on using italics in appeal briefs.

Italicize -

  • for emphasis (rather than underlining)
  • foreign words and phrases (that have not been anglicized)
  • a letter, word, or phrase when defining it (rather than quotation marks)
  • names of cases (rather than underlining)
  • titles of books, articles, and other publications
  • citation signals (such as see, cf.)
  • subsequent history in a case citation

Do not italicize:

  • words or phrases already within italicized matter (use roman instead)
  • punctuation marks after the italics unless it is part of the matter itself
  • when italicizing becomes overused.

Of these tips, three strike me the most. The first is using italics for emphasis. Garner suggests that italics for emphasis is best used within quoted material to show relevance to the point you are making. When writing your own words, there are other ways to highlight your point. You can use word order, strong verbs and precise nouns, and pithy quotations. Other rhetorical techniques include using repetition, parallelism, and conjunctions.

The next tip that strikes me is using italics for book titles. Garner elsewhere explains that the Bluebook and the ALWD diverge on this point. He agrees with the ALWD that book titles are italicized; the Bluebook says use large and small caps.

In South Carolina, either citation form will work. Rule 268, SCACR, suggests that we use either the Bluebook, or A Guide to South Carolina Legal Research and Citation, or any other publication. In turn, the SC Guide provides that either italics or large/small caps may be used for book titles.

Lastly, Garner joins those steeped in typography by forbidding underlining case names. Absolutely forbids it. Lawyers in South Carolina may get tripped up here because Rule 268, SCACR, underlines case names when explaining how to cite them. This is just part of the bad typography suggested in the SC appellate rules. Underlining case names is only a suggestion, however, and can give way when other publications suggest italics.

Any thoughts on using italics for emphasis? In case names? Please leave a reply or reach me at www.attorneyroberthill.com.

 

 

Refuting Fallacies on Appeal – One Way v. Only Way

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This post begins a series on logical fallacies that I have run across in handling South Carolina appeals. My thanks to D.Q. McInerny and his book, Being Logical, for naming these fallacies and for its clear examples.

A statute that I dealt with a while back applied when a child is harmed.  Counsel for one of the parents cited cases applying the statute to parental beatings, arguing that the statute did not apply because the parent did not beat the child. Problem was that the statute did not limit who it applied to or the type of harm required.

This is a fallacy known as “denying the antecedent.” The argument goes like this — if a parent beats the child, the statute is satisfied; the parent did not beat the child; thus the statute is not satisfied. Yet this confuses one way to satisfy the statute with the only way to satisfy it.

McInterny’s example makes the point clearer: If Louise is running, then she is moving; Louise is not running, thus she is not moving. But there are, of course, other ways to move besides running, just as there are other ways to harm a child besides a parental beating.

The flip side of denying the antecedent is “affirming the consequent.” To reuse McInerny’s example, the argument goes: If Louise is running, she is moving; she is moving, therefore she is running. Again, the problem is that running is not the only way to move. The same confusion exists between one way to do something with the only way to do it.

Has anyone else run across this fallacy? Please leave me a reply or reach me at www.attorneyroberthill.com.

 

 

South Carolina Lets a $ 450,000 Verdict Stand

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On Wednesday, the South Carolina Supreme Court declined to disturb a Court of Appeals decision that upheld a tort victim’s $ 450,000 jury verdict. Curtis v. Blake, 392 S.C. 494, 709 S.E.2d 79 (Ct.App. 2011), cert. dismissed as improvidently granted, Op. No. 2012-MO-043 (S.C. filed October 24, 2012).

On appeal, I defended the verdict by pointing to the Court’s limited, “any evidence” standard of review for a jury’s factual findings. Under this standard, the verdict was amply supported by evidence of Curtis’s permanent physical injuries, life expectancy, and continual mental anguish, and loss of enjoyment of life. Here is the brief.

Has anyone else be able to use the standard of review effectively? Please let us hear from you. You may reach us through the comment box below or reach me at www.attorneyroberthill.com.

 

 

 

Statutory Construction Canons with SC Citations

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The last post outlined various types of legal arguments, including arguments from text. This post begins a series of posts on ways to analyze text.

In a recent book, Justice Antonin Scalia and legal writing guru Bryan A. Garner advocate what they described as a “fair reading” approach in which one determines how a reasonable reader, fully competent in the language, would have understood the text at the time it issued. The book, entitled Reading Law: The Interpretation of Legal Texts, lists with examples 57 canons of construction and exposes what the authors call 13 fallacies.

The book begins with five fundamental principles. These principles are quoted below from pages xi-xii of the book and are then annotated with South Carolina law.

“Interpretation – Every application of a text to particular circumstances entails interpretation.”

South Carolina initially interprets the text for any ambiguity. “Where language is unambiguous, the Court’s inquiry is over, and the statute must be applied according to its plain meaning.”Jennings v. Jennings, 401 S.C. 15, 736 S.E.2d 651 (2012).

“Supremacy of Text- The words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.”

See Jennings, 401 S.C. at 4, 736 S.E.2d at 243 (“Statutory construction must begin with the language of the statute.”); Nationwide Mut. Ins. Co. v. Rhoden, 398 S.C. 393, 401 n. 4, 728 S.E.2d 477, 481 n. 4 (2012)(“If legislative intent is clear as reflected in the statutory language, any public policy as promulgated by this Court must give way . . ..”); Bentley v. Spartanburg County, 398 S.C. 418, 426, 730 S.E.2d 296, 301 (2012)(“[W]e are interpreters not legislators and are bound by the language of [the statute] as written.”).

“Interrelated Canons – No canon of interpretation is absolute. Each may be overcome by the strength of differing principles that point in other directions.”

In South Carolina Tax Commission v. Rowell, 154 S.C. 55, 151 S.E. 218 (1930), the Court rejected the argument that a directly conflicting and later enactment supersedes the first enactment in favor of achieving the statute’s purpose in context.

“Presumption Against Ineffectiveness- A textually permissible interpretation that furthers rather than obstructs the document’s purpose should be favored.”

See Florence County Democratic Party v. Florence County Republican Party, 398 S.C. 124, 128, 727 S.E.2d 418, 420 (2012)(“The statutory language must be constructed in light of the intended purpose of the statute [citation omitted]. This Court will not construe a statute in a way which leads to an absurd result or renders it meaningless.”).

“Presumption of Validity – An interpretation that validates outweighs one that invalidates.”

See City of Rock Hill v. Harris, 391 S.C. 149, 154, 705 S.E.2d 53, 55 (2011)(“[T]he Court will, if possible, construe [the statute] so as to render it valid[.]“).

The next post will begin annotating the 11 semantic canons that Scalia and Garner identified. Until then, you can reach me at www.attorneyroberthill.com.

 

 

 

 

 

 

Appellate Briefs – 5 Types of Arguments

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The last post gave an overview of an appellate brief’s argument section. This one covers  the different types of arguments that the brief writer may make.

Wilson Huhn, a Professor of Law at the University of Akron School of Law, authored “The Five Types of Legal Argument.” In it, Huhn offered practical ways to argue from the different sources of the law, identified the policies achieved by each source, and offered ways to counter each type of argument.

The types of arguments are from:

  • text (for judicial objectivity)
  • case precedent (for stability)
  • intent of the drafters (to respect the drafters, particularly those elected legislators)
  • tradition (for social cohesion)
  • policy (for consequences that are consistent with the law’s purpose)

The book explains how to develop each type argument and the different ways to counter each. Huhn, for example, notes that a textual analysis may face competing canons of construction; that precedent is arguably distinguishable; and that intent, tradition, and policy are often open to debate.

Because the book is laid out so clearly, its table of contents offers a helpful checklist of ways to develop and refute arguments. I highly recommend it.

Do any other brief writers have tips on how to go about analyzing the law? If so, please let us hear from you. You may reach me at www.attorneyroberthill.com.

 


 

A Brief’s Argument Section – An Overview

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To date, these posts have covered an appellate brief’s Table of Contents and Table of Authorities; the Statement of the Issues; and the Statement of the Case, including the Statement of Facts. This post one and the next several discuss the brief’s argument section.

Rule 208(b)(1)(D), SCACR, governs the form of the brief’s argument section. It provides, “The brief shall be divided into as many parts as there are issues to be argued. At the head of each part, the particular issue to be addressed shall be set forth in distinctive type, followed by a discussion and citations of authority.”

Two points spring from the provision. The rule first requires distinctive headings. These headings are a road map to where you want your reader go. An earlier post explained how effective headings may persuade the reader from the table of contents alone. Next, the rule requires citing authority. Absent a citation, you risk waiving the point.

These points correspond roughly to the first two of Chief Justice’s Toal’s three tips on composing a brief’s argument section. In her treatise, the Chief Justice advocates giving the reader a clear overall framework with argument headings and using citations to show the applicable authority.

The Chief Justice’s third tip is to analyze the facts and the law. She suggests a three-tiered approach:

  1. focus on the text, such as the precise words in a statute or the precise elements of the common law claim or defense
  2. discuss the case precedent, showing how the helpful cases are analogous and the harmful ones are not
  3. argue policy, explaining why your result is the one that the General Assembly intended or is good for the legal system or the greater society.

South Carolina – Tips and News will over the next several posts discuss arguments based on text, precedent, policy, intent, and tradition.

Until then, does anyone have any tips that they would like to share on drafting a brief’s argument section? You can reach me at www.attorneyroberthill.com.

 

 

Stark’s Tips for Writing a Narrative

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The last post discussed limits on using story-telling techniques in an appellate brief’s statement of facts. This one covers Steven Stark’s tips on how to write the powerful story. Steven Stark authored the book Writing to Win. In his book, he offers six rules for the strong narrative:

  • think of yourself as a story-teller
  • write about people
  • remember that plot is overrated
  • create word pictures that make the story come alive
  • use specific detail
  • use realistic dialogue that reveals the person’s character.

In making these points, Stark urges lawyers to write about people because most of the legal writing that lawyers read are judicial opinions that often give “the law” far more prominence than the parties. He suggests tongue-in-cheek that no one would want to read a story titled, A Day in the Life of the Reasonable Man. Yet we lawyers continue to write our briefs that way.

Stark similarly suggests “realistic dialogue” or quotes to allow the parties to tell their story in their own words. When people speak in their own words, they may convey much more information than the substance of what was said. Stark suggests using the quotes to reveal the parties as people.

Lastly, Stark encourages brief writers to first focus on the specific and then the general, and use detail to capture place rather than describe people. Descriptions of people should be left vague, he argues, so that the reader may put themselves in your client’s place.

This is, of course, an incomplete and sketchy summary of Stark’s thoughts on how to write a strong narrative. For more guidance, please purchase the book. It is extremely helpful.

Anyone have other tips to add? You can reach me at attorneyroberthill.com.