Epilogue―Three Takeaways from the Three Briefs
and the real reason for fire alarms
Walker Percy, The Moviegoer (1961)
What is the nature of the search? you ask. Really it is very simple, at least for a fellow like me; so simple that it is easily overlooked. The search is what anyone would undertake if he were not sunk in the everydayness of his own life. This morning, for example, I felt as if I had come to myself on a strange island. And what does such a castaway do? Why, he pokes around the neighborhood and he doesn’t miss a trick. To become aware of the possibility of the search is to be onto something. Not to be onto something is to be in despair.
“The Office,” Season Five, “Stress Relief” (2009)
Dwight Schrute:
Last week I gave a fire safety talk and nobody paid any attention. It’s my own fault for using PowerPoint. PowerPoint is boring. People learn in a lot of different ways, but experience is the best teacher. Today, smoking is gonna save lives. (casts cigarette into a trash can starting a fire)
The first thing that struck me, sort of bittersweet, is that the really cool ones are pretty rare. I’ve been doing this for close to 25 years. I’d say there are only a handful of briefs in that time where the brief itself was something notably different. A lot of formatting stuff is subtle and just looks nice. There are plenty of briefs I loved and that had passages in them I was proud of or deeply amused by. But something about the brief that every reader would see as totally different―rare.
Another thing that struck me was just how much I enjoyed these briefs and the people I worked with. And they enjoyed it, too. They’ve told me so.
Which naturally brings me to the subject of fire alarms. Why do we have them? You might say, “Duh, to tell us when there is a fire.” Perhaps, especially at home when people are asleep.
It turns out a critical purpose with fire alarms outside the home is to overcome the first-mover problem. They’ve studied this. They put people in a room where fake participants know that it is a psychological experiment about group dynamics and will ignore all of the signs of a fire because they know it is fake. The actual participants have no clue. Smoke rolls in. Good god, thinks the actual participant, we need to do something! But these other people aren’t doing anything!!! Sit there. Worry. Twitch. Lose mind.
Turns out people will wait a long time before doing the obvious thing if no one else is moving. Just like bystanders don’t help someone in distress until someone else moves first. Fire alarms take care of that. They make it socially acceptable to get up and move.
Across my big takeaways, I see a first-mover problem combined with a related desire not to stand out too much. But on the flip side, a lot of good things happen when people feel free and onto something.
Big takeaway #1―The people in authority need to be cool. No one is going to file a cool, innovative brief unless the senior attorneys and the client are OK with it. So across all three briefs, here’s who was cool.
For Keiser, Rick and I were essentially the clients and in charge. Rick and I are cool. For the Dinosaur brief, the clients were not repeat players in litigation. They were a family who owned some of the mineral rights. They were likely to defer to us on questions of style.
It does make me laugh to consider whether they or another senior attorney at my firm ever had something like the following conversation:
“Dinosaur emojis? WTAF, Bob. Seriously, who is this guy and what is he doing?”
“I know, I know. But I think we have to trust him here. He clerked for Justice Scalia.”
Which begs an awesome question: what would Justice Scalia have thought about the dinosaur emojis? Some of you may think that he would have rejected them out of hand, appalled by such nonsense. As it turns out, I asked him. (No, just making that up.) But he was not opposed to having an awful lot of fun. See, e.g., PGA Tour, Inc. v. Martin, 532 U.S. 661, 700 (2001) (Scalia, J., dissenting) (the “What is Golf” riff); City of Chicago v. Morales, 527 U.S. 41, 81-92 (1999) (Scalia, J., dissenting) (the West Side Story riff); Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 398 (1993) (Scalia, J., concurring) (the ghoul in a horror movie riff).
What’s interesting about that “fun” is that it is increasingly acceptable in briefing (or opinions) to have some fun in what you say, as long as it is isolated and merely textual. A little bit here or there. An aside. A fun metaphor. Maybe a thematic riff. But just in text. Visual fun? We as a profession are not there yet.
And who enforces that? Unfortunately, in the legal profession, it is often the folks with the authority and credentials who clamp down on creativity and fun, almost as if they seek to show their mastery of the dull arts. Some of America’s highest-priced lawyers have the coldest, firmest death grip on old style. And thus, back to the fire alarms, with senior lawyers it’s not just any false participant who is ignoring the smoke. It is those in charge or who seemingly know the most. And if they’re not moving, well, forget it.
Judge Frank Easterbrook has been a significant force for better visual style. It’s creeping into Supreme Court opinions, too. I expect it to slowly filter down. But to those who have authority, understand the shadow you cast over everyone else. They’re looking to you and won’t or can’t move without you, and you may be missing out on a lot of great ideas (see #3 below) and fun (if you even understand fun).
And of particular importance to me, in that regard, was the #1 brief. It had a more traditional client and briefing situation. The case wasn’t about dinosaurs, and I didn’t have the final say or some outsized deference to me. It was also the most visually radical of the three briefs. It probably helped that it was a confidential arbitration, kind of like what happens in Vegas stays in Vegas. (See next takeaway.) But as I said in my last post, enormous credit to the client for being open to doing something very different. It would be great to see more of that.
#2―Take advantage of those contexts where you have more freedom. Keiser was an odd situation. Lots of crazy stuff happened in court. Freedom to try and explain an unusual scenario. The Dinosaur case was an interesting and sort of fun situation where everyone is talking about something that just never arises. Freedom to have a little fun with it. And the toasted brief was in a confidential arbitration with no rules of formatting; no one looking and no “local rules” telling you what to do.
There are lots of contexts where lawyers could have more fun. Arbitrations, mediations, and memos are the obvious candidates. But even in court, certain cases may lend themselves to a different approach. And lord knows anything even modestly different will stand in contrast to 99.9% of legal filings, which are dreadfully conventional and formulaic. Sometimes they sort of have to be, but dreadful style reaches far beyond what is mandatory. Honestly, why is anyone writing a memo in the local court rules briefing style?
#3―Creativity and fun are contagious. This is what struck me most. Once a decision was made to try something creative, it’s like we were different people. All of a sudden there were a ton of ideas. In no respect was the creativity on display just me free-soloing. Far from it. While I may have had some authority or credentials to open things up, once people were free to move and explore the island, we were onto something and searching. No despair anywhere. It was wonderful.
And on that last note, my posts have led people to send me some cool stuff. My next installment will feature things people have sent me since I started posting that I think you all might be interested in. Until then, save Bandit.
