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.
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. In short, 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.
A well written brief has a kind of beauty about it. The well written brief 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. Of course, this sort of thinking can slide into pantheism and this has been a slide against which monotheism has expended a huge amount of effort.
Mormonism creates such a strong distinction between God and the universe, between the creator and “matter unorganized,” that it is difficult, I think, for us really to appreciate the appeal of the omnipresent logos or long after the flesh-pots of pantheism. Still, in the appellate brief or a well played game of chess (something that I do not do well), I think that I get some sense of what such imminent reason might mean and I wonder how such beauty relates to my radically situated and Mormon God.
Nate,
Trial by combat is underrated. It allowed a generation of female lawyers to earn a living as representative who could not be challenged to a duel. After the abolition of trial by combat, the female bar disappeared for centuries.
Also, it should properly be thought of as a game of chess that takes several years, and where the actual player doesn’t study individual moves all that much — he has associates who do that for him, and he tries to keep the game going on a more “meta” level. And the associates change constantly. And if you argue really well, you may get the appellate court to give you your queen back, even if you were silly enough to move it right in front of the other fellow’s rook in the first place.
Only if the other side is careless enough to fail to preserve the rook issue for appeal.
For one thing it lends substance to the otherwise circular argumentation that both Lehi and Alma engage in with regards to the creation as a proof of the existence of God.
Oops, something wrong with the links on the above:
The first link is to Lehi’s argument in 2 Nephi 2:13.
The second links to Alma’s debate with Korihor in Alma 30:44.
How so? You are going to need to elaborate on this for me John, as I am not getting the reference.
N. Oman,
We should we conclude something from the fact that we have a longing for an underlying order at all? For reasons having to do with Why I Believe, it’s hard for me to think that we have longings like that that aren’t to be fulfilled. In other words, I think the universe and time probably do fall into the clean patterns of a pleasing geometry, if one only has divine eyes to see it.
Adam: It seems to me that the problem in Mormon theology with your view is that the universe is in some sense resistent to God’s ordering. Matter neither can be created nor destroyed and all of that. Indeed, Mormons often offer some version of a finitist theodicy that says that the universe is the best that God could make given his limited power over recalcitrent materials. Because I don’t see the universe as being completely God’s responsiblity to what extent am I entitled to see its occasional flashes of rationality as evidence of his presence?
You stated 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.
It seems to me that this is precisely what Lehi and Alma are using as support in their arguments for the existence of God and his law. In fact, Lehi even positions this observation in his argument that touches on reason as you do, in the sense that in his discussion of law he is distinguishing between aspects of the creation that act or are acted upon. We can be either and Lehi seems to be making both an ontological point about our nature as children of God and (possibly) even an epistemological point that can be understood (I think) as anticipating considerations of reason or rationality; it certainly points to agency.
Thus, the point I was trying to make (perhaps it is incoherent and thus your confusion) is that the distance is perhaps not as great as you imply. After all, Lehi was already examining that relationship 2600 years ago.
Did you mean “immanent reason”?
Bill: probably…
So if you meant immanent reason, are you implying that your “Mormon” conceptual framework precludes a clear perspective of underlying strategic goals in existence?
Carl Sagan wrote a book called uh, it had Jodie Foster in it, uh, You know the one. A big book. with big words. Starts with a “C”
I read that book, and I looked up every word I didn’t understand, in my big, 1600 page hard back dictionary. Most of them I couldn’t find in there.
I got so mad I quit speaking to him and now he’s dead, so it’s moot, but why write a book only a few people can understand unless you’re trying to say “I’m smarter than you.”
Well, he made his point, the book got made into a movie, but he lost me as a friend.
You guys, speak English.
annegb —
one thing to learn about Times and Seasons — there are a lot of lawyers and quite a few philosophers around here. Occasionally, they’ll talk among themselves. Best to leave them alone and play somewhere else.
Although this post was nice. Almost I am moved to comment…
Nate’s clever title inspired me to take a stab:
“. . . I wonder how such beauty relates to my radically situated and Mormon God.”
The beauty you see is related to the radical Mormon ontological conception of God in that we believe God has a complete understanding of and harmony with the very order you sense. When you feel awe towards the order and reason of the Universe, perhaps you are experiencing “godliness” itself..ie you are “knowing God”.
Lehi’s argument doesn’t obviously relate to this Nauvoo era vision of God…his argument seems to be in support of a more traditional “Creator God”.
Nate, I love the way you discuss argument (although law has no corner on argument, of course; even the maligned post-modernists are occasionally known to make a few). I remember the feeling of scales falling from my eyes when I first encountered Stephen Toulmin’s work on rhetoric, in which he anatomized argumentation in terms of claims, grounds and warrants. Do lawyers use Toulmin?
Bryce is right, don’t dumb down for me. I would be bored if you guys weren’t so smart. And bored is a hell of a lot worse than confused.
Nate’s post eloquently describes why I so enjoy law. It also perhaps explains why I did not ever get the same level of enjoyment from my Ph.D. program. Rather than the subject matter being a bunch of bunk, as I had supposed, perhaps I just did not understand the beautiful underlying patterns and strategies. I guess I shall have to cease maligning the liberal arts Ph.D.s, who surely possess the deep appreciation for good research and writing in their field which Nate has exhibited here for the beauty of a well-written appellate brief.
Like mastering chess, it make take many years to develop the sophistication necessary to draft truly masterful briefs. It’s good to have that perspective in mind, Nate, and remember why I am so looking forward to my legal career as I now struggle with the mind-numbing details of “commercial paper” for the Texas bar exam, among all the other subjects.
Nate has a true gift for describing such phenomena. Thanks, Nate!
Nate, I have on the bulletin board above my desk the “Analytical Method in Chess Thinking” checklist from Volume 1 of Secrets of the Russian Chess Masters by Alburt and Parr. I put it there to help me with my chess game, but I find it helps my litigation game too. Here’s the list:
1. Does my opponent’s last move contain a threat? If so, deal with it.
2. Are my own pieces all adequately protected? Has my opponent left a piece exposed to capture for free?
3. Is my King safe? Is the opponent’s King vulnerable? For example, is it possible to sacrifice a pawn to prevent the enemy King from castling?
4. Did my opponenent meet the threat offered by my last move?
5. Do I still have pieces that need development?
6. Can I move a Rook to an open file–say, the d or e file? Is it possible to double Rooks or a Queen and Rook on a useful open file?
7. Does my opponent have a weakness that can be exploited?
8. If so, how can the weakness be exploited? (Find a way to exploit the weakness that involves making a plan.)
9. Does the move I plan to make overlook something very, very simple, such as the loss of a piece or checkmate? Train yourself to look around the position “with the eyes of a beginner,” as Russian players often say.
Not a perfect analogy, but much of it works. Note that the chess analogy works at the trial level as well.
By the way, I know I owe you moves in our correspondence games, but I’m busy at the moment, well, writing an appellate brief.
You’ve touched on the reason why I’m drawn to philosophy as a field of study: the argumentation. There’s a series called “The Library of Living Philosophers.” Each volume in the library is about a single chosen, very prominent philosopher. A bunch of other prominent philosophers (a veritable who’s-who of philosophy, in fact) write essays arguing against the chosen philosopher’s position. The volume contains these essays, along with essays by the chosen philosopher that answer each argumentative essay. A few of them are surprisingly bad (e.g., the contributors to Bertrand Russell’s volume–except for an excellent piece by Einstein–are unduly pedantic and argue largely beside the point, and Russell has a hard time concealing his disappointment.) But for the most part, these are the best in their field playing with vigor (and often with bare knuckles) at the top of their game, and the argumentation can be as breathtaking as it is breathless.
In spite of Joseph Smith’s occasional efforts (e.g., the Kirtland School of the Prophets), there is no such tradition of argumentation in Mormonism. Nowadays, the focus is on consensus, and It is said that the spirit of contention is of Satan. For my part, I regret this absence. It is my belief that mere mortals may, though lucid and vigorous argumentation, make baby steps in the exploration of the profound twin beauties of knowledge and reason. If bold and forceful arguments make others uncomfortable, they give me a rush.
I am waiting for the post on the theological insights to be gleaned from never-ending discovery and document review, the bread and butter of young attorneys in big firms. Millions of insipid documents. Are ours privileged? Are theirs complete? A smoking gun amongst the recovered emails? Anything interesting at all (once I found dissiderata of a steamy inter-office affair in recovered emails–it had nothing to do with the case, but it helped me get through them)? Alas, I am afraid the risk here is not pantheism, but nihilism pure and simple.
Do associates do that kind of thing at Sidley, Nate? Or is all briefs, chess, and theology?
Thanks Shawn. Now I am once again wondering why I am bothering to study for the bar at all… You paint a bleak picture… ;)
Don’t fret Jordan. I am just trying to get the big firm guys going. I was a DOJ trial attorney, currently clerking, heading back to DOJ (I hope). I have only spent three weeks of my life (in the musty basement of a certain federal agency no less) doing document review. Just enough to gather material for the mormon legal thrillers I hope to publish serially in the New Era someday.
Shawn and Jordan — (Apologies in advance: I can’t stand people who play ‘I have a secret’, but in this case, perhaps it can be turned to good. . .)
I thought I was leaving the drudgery of law practice all behind me when I ‘escaped’ into the monstrosity that is the Intelligence Community. Imagine, if your pained and wrung-out, junior associate psyches can, a species of document review without the niceties of legal ethics and priviledge, the restraining influence of corporate culture, and the occasional beheading video thrown in, just for good measure.
The grass is NEVER greener. . .
Shawn: But I have blogged already about document review. See “A Lyric on Document Review or Why We Blog”
Jordon: Commercial paper is actually really facinating. The rise of negotiability was one of the great innovations in commercial law. In particular, it provided some measure of liquidity for the cash starved economies of frontier America, including Nauvoo. Indeed, one of the primary mediums of exchange in Nauvoo was promissory notes, many of them originally signed or guaranteed by Joseph Smith. One of the results of this dependence on commercial paper as a medium of exchange is that the Nauvoo “currency” became extremely sensitive to the public credit of the Church, so that ecclesiastical crises tended to have inflationary effects in the local economy.
Nate- you know, you are right. I wrote that at the beginning of the lecture. I actually found the lecture interesting, particularly since I spent several years working in a bank as a teller and as a sales associate. And that is an interesting aspect of Church history, one with which I am not yet that familiar. Can you recommend any good books?
Note that however interesting a topic, learning it for the bar (at least for me) is downright frustrating.
Flander’s _Kingdom on the Mississippi_ discusses the issues regarding promissory notes in Nauvoo. Friedman’s _A History of American Law_ and Horwitz’s _The Transformation of American Law_ (the first one not the second one) both discuss the rise of negotiability and its influence on the course of American history generally.
Speak not slightingly of commercial paper…The bar exam, I grant you, is about as much fun as having your teeth pulled without anesthetic. Well, perhaps not that much fun….
Greg: I have heard from several people that _Secrets_ is a good chess book. What is your reaction? The best thing that I have read so far is David Bronstien’s _Zurich International Chess Tournament, 1953_. With a name like that, how can it not be great?
Rosalynde: I have never heard of any law schools using Toulmin, but you never know. I had a professor on HLS who taught an entire seminar on John Le Carre novels! (This from a man who snookered HLS into hiring him to teach enviromental law and then refused to teach it as soon as he got tenure.)
Nate: your document review post came during one of my ill-fated Times and Seasons diets. It rings true to me. Now I am back like a dog to its vomit, or something like that.
No offense intended by the vomit comment. I have been here off and on (although rarely posting) since December 2003. I found T&S during the first months of my life away from rich social and intellectual school fora; the first months of my life spent alone in an office with nothing but westlaw, a few case files, and the ticking of a government-issue clock to keep me company. In other words, I think I understand why you all created T&S, and I am glad you did. Likewise, I don’t know how you keep up the quality of your posts, your extensive reading, and your biglaw work, but I am glad you do.
Nate, I enjoyed them (I read volumes 1 and 2–I don’t know if there are others). There’s a short instructive chapter, each followed by an illustrative annotated game, and then exercises. I’ll pouch them to you for your perusal.
Greg
Nate,
I also don’t believe said professor has published anything since getting tenure. If you look at his bibliography, it appears he published a rash of articles the year or two prior to the tenure grant and then nothing for the last 8 years. It appeared to me at least that he spent most of his time and energy dating students (and apparently reading cold war spy novels)
Jared: I never could understand the dating of students thing. He was not … er … the most attractive or charming man that I have ever met.
“Because I don’t see the universe as being completely God’s responsiblity to what extent am I entitled to see its occasional flashes of rationality as evidence of his presence? ”
What do you make of the doctrine that all things obey God but man? I take it to mean that, though God did not create it wholly, All That Is has deep beauty and rationality because He orders it all to His ends and its greatest good. Even the Fall, the disorderliness of man and the consequent disordering of nature, have a deep orderliness in it when you see the purposes and reasons for it. Maybe I’m slowly moving myself towards suggesting that, like art, the universe is more beautiful (perhaps even beautiful at all) because God is working within certain constraints: his purposes and that things are they way they are.
Consider it like this, Nate Oman. Is the watch no less a tribute to the watchmaker though he found the metal in the ground? Are your briefs arguing the law imperfect because you have not have made all the laws?
The bar exam, I grant you, is about as much fun as having your teeth pulled without anesthetic. Well, perhaps not that much fun….
I actually did enjoy the bar exams I took, both of them (Utah and Texas). The multistate, especially, just made me feel better about life. Nothing like a 99th %tile score to make you feel better about life in some way.
But transactional law … there is a reason I am a litigator, though I envy Nate his appellate work. The closest I get is motions for summary judgment which I am intentionally simplifying, and the occasional bookending I’m able to accomplish. But, three MSJ wins on the year so far and it is only February 8. Obviously most years don’t start off quite so good and I remember a great deal of pleasure when I used to do appeals, even in the ones that didn’t go well or the many I did for other attorneys, under their names.
Though the worst thing to have happen is to win an appeal with an opinion that notes that you missed a change in the law, though opposing counsel waived the issue by not raising it, so you win, even though you were wrong, and btw, let us cite all the relevant cases so Westlaw will now have them all show up with red flags instead of bright blue H’s and nothing in the history to warn anyone … so anyone who revisits the area will get linked to your opinion.
Sigh.
Nate: to echo Kaimi’s in defense of trial by combat,
non-combat litigation also took away the threat of serious bodily injury, which was then a serious deterent to those contemplating charging another with a crime or misdeed.
how many of your cases would be litigated today if serious personal injury was possible…even if the client knew they would “win” in the end?