January 27, 2006
Judge Klatt visited Government Agencies meeting
~ written by John H. Jones, Government Agencies Committee Chair
Judge William Klatt of the Tenth District Court of Appeals was the guest speaker for the Government Agencies committee meeting for January to discuss appellate practice. Judge Klatt first explained the assignment process that takes place a few weeks prior to oral argument, where three judges are assigned to hear a case with one being assigned the responsibility of writing the opinion. He explained the judge assigned to write the opinion could change after oral argument when the judges discuss the case for the first time together in conference. If the judge assigned to write the opinion is in the minority, that judge then must write a dissenting opinion and one of the other judges writes the opinion for the majority. Judge Klatt also discussed the process he goes through in preparing for oral argument and he shared some pointers on how to write a good appellate brief.
In his preparation for oral argument, Judge Klatt forms a tentative conclusion about each assignment of error. However, he emphasized the importance of oral argument and how it could make a difference with his opinion in the case. Judge Klatt sometimes makes notes, so he can ask counsel questions during oral argument. He wants you to answer his questions, because it could make the difference with his opinion in deciding your case. Judge Klatt advised it is best to argue your two or three strongest points about your case in oral argument instead of diluting your argument by highlighting every argument made in your brief.
Judge Klatt's advice on writing good briefs involves clarity, organization and destination. He says let the reader know up front in an introductory paragraph the destination. He advises that a writer who has a conceptual outline should pay attention to transitions. Also, he suggests the writer should incorporate equities in addition to the application of law. He recommends a shorter brief with fewer assignments of error will usually be sufficient and better. Judge Klatt reminds us to maintain our professionalism when writing our briefs. He stated that his confidence in an advocate can be shaken if counsel does not accurately characterize a case cited in their brief. He advised it is always best to address opposing counsel's contrary authority. He states that reply briefs should not exceed seven pages and rehash the same thing presented in the original brief. Instead, he states you should go after points made in the appellee's brief. As to mechanical things, Judge Klatt states headings should be advocacy statements; string cites should include key quotes or points of law; don't bother with dates unless important; write short sentences and paragraphs; use active rather than passive voice; use parties names; use short quotes sparingly and no long quotes; minimize length to maximize impact; editing; and make strongest arguments first.