Minnesota Lawyer Blog

Minneapolis attorney Mary Vasaly recently returned from a trip to Washington, D.C., where she had a chance to hear from U.S. Supreme Court Justice Samuel Alito on appellate advocacy. At today’s Minnesota CLE Appellate Practice Institute, she passed along two nuggets of advice Alito shared.

The first was that amicus briefs shouldn’t repeat the arguments of the litigants, but should present the case in a new light. That makes sense.

The other comment was interesting. According to Vasaly, Alito said he frequently only reads the summary-of-the-arguments in briefs. (Supreme Court briefs can be up to 15,000 words long.) Thus, it's important to pack as much information into that section as possible – but concisely.

I’m not sure how I feel about the justices not reading the entire briefs.

This joke practically writes itself, but a motion for an enlarged brief has been filed in the Sen. Larry Craig case.

Truth be told, it's the Metropolitan Airports Commission, not Senator Craig, with the apparent problem in its brief size. The MAC says it needs the extra room to address all the novel issues raised by Craig and his amici in their briefs.

"Despite honest efforts, I am unable to abbreviate the text to the extent required by the Minnesota Rules of Appellate Procedure while giving proper attention to the issues raised by both factions in this appeal, and I wish to provide the Court with all information and analysis necessary to make an informed decision," writes the MAC's attorney, Christopher P. Renz.

No word yet from Craig on his stance on this. It is widely expected that he will be understanding of the difficulties inherent in trying to keep within a very confined space.

A decision issued by the Minnesota Court of Appeals last week, Gagliardi v. Ortho-Midwest, involved a claim brought by a woman who said she was fired in retaliation over a report of sexual harassment made on her behalf. (The woman was terminated after her boyfriend sent an e-mail to the employer's client accusing one of the client's employees of harassing her; the court found that the anti-retaliation statute did not cover reports made by third parties, such as the boyfriend.)

The case had an equally interesting side point. The court criticized plaintiff's counsel for not including facts in the plaintiff's brief that arguably showed some of the alleged harassing behavior may have been consensual. The appellate court said that it found the factual omissions in the plaintiff's brief "troubling."

It is difficult sometimes for lawyers as advocates to include facts that might not be favorable to their client's position, but it's important that they do so. Not dealing with "bad" facts allows the other side (which will, of course, have those facts in its brief) to frame the issue. More importantly, once a court comes to the determination that you did not put relevant facts in your brief, the rest of the brief's content -- rightly or wrongly -- becomes suspect, compromising the effectiveness of how you presented the case.

This case should serve as a reminder to all lawyers to make sure the court has all the facts it needs to render a just opinion. Lawyers' duty to be zealous advocates for their clients should never make them lose sight of their overarching obligations as officers of the court.