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December 29, 2005
Finding God in Chess and the Appellate Brief
When my professional life is going well it consists of reading and writing appellate briefs. Fortunately, this is not nearly as pathetic as it sounds.
At its most basic, an appellate briefs is a written argument presented to a court explaining the claims of your client and how those claims are supported by the law. As such, it represents one of the great triumphs of human civilization. I am serious. Law rests on a basic commitment to resolving the disputes of human life by resort to reason rather than violence. In the days before appellate briefs (or something like them) we resolved disputes through blood feuds, trial by combat, or by throwing women into ponds to see if they floated. Deliciously dry and intricate arguments about precedent, controlling authority, pleading, and statutory construction represent one of the few unequivocal leaps forward in human history. Post-modernism, historical relativism, and skepticism of Whig history all have their place, but at the end of the day, the rule of law is simply a lot better than trial by combat. Generally speaking, the progress of reason is told in Enlightenment terms as a story about the ebb of faith down the shingles of Dover Beach. However, it is possible to see the triumph of reason in the brief in terms of an older vision of reason: The trace of the divine.
A well written brief has a kind of beauty about it. It will have a unifying structure, a clear skeleton on which the flesh of the argument hangs. Doctrinal arguments and policy arguments will be woven together, adverse precedents will be carefully distinguished without seeming glib or plodding. The writing will be clear and free from jargon (except for the occasional flourish of a Latin maxim). At the end of the brief, the reader will be left thinking, “The law supports the appellant’s claim and it is a good thing to, as our law is wise and just and clear.” A badly written brief is all ugliness. The question presented will run on for pages. The argument will be lost in a profusion of points and subpoints, never coalescing into an identifiable structure. Adverse precedents will be ignored or labored over for pages. Doctrine and policy will be left in stark isolation, presenting the judge with the unhappy choice of enforcing a bad law or ignoring the law to reach a just result.
In this sense, an appellate brief is like a game of chess. A person who knows how the pieces move, but has no grasp of how the game is played will push pawns and bishops aimlessly around the board, attacking and defending pieces with no discernable strategy or plan. Weaknesses in the player’s position will develop, backward pawns, and hanging material will proliferate as pieces clog the lines of attack of their fellows until ultimately the game sputters to an accidental ending. In contrast, in a well played game of chess each move will fit into a position or plan. There will be identifiable strategic goals and great care to avoid the minor weaknesses that will later flower into catastrophe. The game will utlimately be decided by the execution of a coherent strategy pushed forward by precise attacking combinations.
Both chess and the appellate brief present a drab and plodding exterior but there is a deep structure to both that can exhibit the beauty of well employed reason or the ugliness of diffuse and scattered thought. Traditionally, theologians have looked at the world in remarkably similar ways, searching out the trace of divine reason. Indeed, the very cognizability of the world, the fact that we can make some sort of halting sense of it, was seen as a finger-print of God and reason itself became an aspect of the divine presence. Likewise the beauty of the world, which was related to our capacity to apprehend it, was likewise a trace of the divine logos. For me there is a similar kind of grace and beauty to the well-crafted legal argument or the finely-timed chess combination. There is something of the same divine spark of reason that fills the world of the believer with the trace of the divine.
(Orginally posted in modified form at Times & Seasons)
Posted by Nate Oman at December 29, 2005 02:43 PM
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Comments
I have nothing substantive to offer in reply, but I would like to say that I really liked that piece. The only thing I find disagreeable is that I really don't think that Chess is, in any way, shape or conception posessed of a "drab and plodding exterior" - but then again, I like reading appellate briefs, too. ;)
Posted by: Simon at December 29, 2005 05:04 PM
Having to slog through this post is really too much to bear. It a backhanded, transparent pronouncement that "I write great appellate briefs, indeed, I see the hand of God in them. Lesser pagans must improve to meet my godly standard." Such self-flagellation seems more appropriate on a porn site. If you have a brief you're proud of, post it here, ala SCOTUS, and we'll tell you if it's any good. Given the pedantic, long-winded, goofy nature of your posts, I'd be surprised to agree with your assesment.
Posted by: Stokie at January 1, 2006 05:30 PM
1 ... d5
Posted by: Bruce at January 1, 2006 05:43 PM
Stokie: I get the accusation about covert bragging. (Alas, I don't write great appellate briefs, as much as I would like to. Mainly, I do priv review, an area of the law where I have been unable to see the hand of God.) I am mystified, however, about the accusation of self-flaggelation and p*rn sites. Where are the whips and chains?!?
Posted by: Nate Oman at January 2, 2006 11:56 AM
2. resign
Posted by: Nate Oman at January 2, 2006 11:56 AM
Nate,
You don't see the hand of God in priv review? Let's see:
-Asked to sacrifice son (and rest of family);
-Liable to be zapped for a rule you didn't know about, like steadying the Ark;
-Don't look back or you'll be turned into a pillar of salt;
-Priv guidelines that are as easily understood as the book of Isaiah;
The parallels seem to be there . . .
Posted by: Kaimi at January 2, 2006 06:56 PM
What the heck is priv review?
Posted by: Bruce at January 2, 2006 10:11 PM
Great piece. Clearly this is something even the best of lawyers can improve upon (writing in general, appellate briefing in specific).
I have posted a link to your piece, and also to a related post from another blog.
Posted by: Kierkegaard at January 3, 2006 10:51 AM
Bruce: Prv review consists of reading through thousands and thousands of pages of documents provided by a corporate client to determine which documents are covered by the attorney-client privilege and thus don't have to be produced in response to a discovery request, and which documents are not covered by the attorney-client privilege and thus must be produced.
Essentially it is a gargantuan exercise in extremely high-stakes monotony. It is monotonous because the documents tend to not be especially exciting and there is a creat deal of time spent determingin if joe smoe is or is not an attorney. It is extremely high-stakes because if you inadvertantly produced even trivial privileged documents, then you can be deemed to have waived the privilege, which can have huge consequences.
Hence, it is the practice of law at its worse: boring stress.
Posted by: Nate Oman at January 3, 2006 10:57 AM
Comment removed at the request of the commenter.
Posted by: Stokie at January 3, 2006 12:55 PM
It sure seems from the posts that a bad day fishing or playing chess is a whole hell of a lot better than a good day lawyering.
Posted by: jimbino at January 3, 2006 03:26 PM
