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):
- What a Bad Supreme Court Brief:
- Not the Best Way of Putting It:
A new attorney needs to be selected for oral argument right now.
"More broadly, the spends a lot of time repeating platitudes...."
Sorry, couldn't resist.
Best,
Ben
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?
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.
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.
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."
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?
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.)
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.
I would expect at the Supreme Court level, the briefing is usually excellent for both the Government and defendant.
I think Eugene is owed at least one billable hour.
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.
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.
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.)
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.
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?
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.
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.
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.
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.
Brilliant. Maybe unethical, but brilliant. And I don't doubt that it's true. Lawyers/clerks/judges love to one-up each other.
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:
But if a dismissal was their goal, they should have asked for it directly.
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).
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.
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.
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.
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.
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.
On another note, would you feel confident that a lawyer who writes that poorly didn't waive issues by failing to present them?
Nick
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.
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.
Ah, yes. It is good to know that advocates must establish that the speech of their client is "protective," rather than protected.
Somebody needs to talk to Respondent's counsel and imitate Inigo Montoya.
Nick
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.
This guy doesn't need Ted Olson. He needs a copy editor and a high-school English teacher.
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.
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.
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.
22.22 hours? I cannot imagine giving any brief so little time and effort.
I expect that you made the late Roman Hruska smile from the Great Beyond.
I expect that you made the late Roman Hruska smile from the Great Beyond.
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.
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:
The conclusion? Counsel somehow submitted a draft of the brief, rather than the final version.