TALP 43 | Effective Storytelling

 

Legal writing and literary writing share a common goal—telling stories in a way that engages the reader. But too often, legal briefs get bogged down in detail and technical language. This causes the brief to lose both the story and the reader.  In this episode, Todd Smith and Jody Sanders talk with appellate attorney Jason Steed about how his experiences in creative writing and as an English professor help him prepare legal briefs that combine story with clear, concise legal writing. Jason also discusses ways to use tone and varying degrees of formality to keep the writing readable.

Listen to the podcast here:

Effective Storytelling in Appellate Briefs | Jason Steed

Our guest’s name will be familiar to you. It’s Jason Steed. Jason is an appellate lawyer in Dallas at Kilpatrick Townsend & Stockton. A lot of you who are on Appellate Twitter, Jason is active and I’m sure that you’ve seen and heard from him over the years. He’s also an active CLE speaker on a lot of different appellate topics. Jason, for those of us that don’t know too much about you, can you tell us a bit about your background, who you are, and where you’re from?

First thanks for having me. I grew up in Oregon. I came to Texas for law school at the University of Texas in Austin, and I have been in Texas ever since. We’ve lived in Texas slightly more than the number of years we lived in Oregon growing up. That’s weird. I’m an appellate lawyer at Kilpatrick Townsend & Stockton.

You have an interesting background because you didn’t go the straight path through college to law school and then start practicing law. Can you tell us about your path to practice law and appellate law and how you got where you are, because you took an interesting route?

I came out of high school with the vague idea that I’d go to law school. Those who are familiar with my Twitter account, particularly over the last few years, know that I’ve been somewhat politically interested or politically active. I’ve been that way since high school. I came out of high school with this vague idea that I would major in Political Science and go to law school to be an environmental lawyer or some other issue or movement-based practice. I quickly thought that I didn’t want to be a lawyer. I thought I would hate law school and it would be a bunch of black and white rules that you had to memorize.

I liked reading, writing and literature. I switched and became an English major and wanted to be an English professor and I got a Master of Fine Arts and Creative Writing. I published a bunch of short stories, some poems, and was going to write novels. I also went and got a PhD in American Literature. I thought I would teach in an English department, write books for the rest of my life and was happy with that. I changed course. Depending on who you ask, it was one of two reasons. If you asked me, it was because being an English professor meant you can’t choose where to live. You have to go wherever the English department jobs are. You’re limited on cities. In any given year, it’s whatever positions are open at certain schools in certain cities.

You’re limited on your choices of where to go. That was the main reason for me. I had a job offer in New York City. At that time, we had three kids and trying to take three kids to New York City on an English professor salary was not doable. That was the only good offer I had. At that time, there were about 300 English PhDs for every one tenure track position that was available. It was bad. I started thinking about doing something different. If you ask my wife, I didn’t make any money as an English professor. It was about time to start making a little more. They pay you in highlighter pens and pads of paper.

I decided I’ll look into law school after all. I applied, went to law school, and loved it. It’s the same thing I was doing before. As an English professor, I was reading poems, short stories, or plays and trying to figure out doing close readings, interpreting language, textual interpretation. Now it’s statutes, contracts, and constitutional provisions, but I’m still trying to tell you what this text means. Only now people read the stuff that I write, and I get paid for it more than in highlighter pens and pads of paper. It’s worked out well.

UT Law is what brought you to Texas then?

Not being able to choose where to live was a big problem as an English professor. When I decided to go to law school, when we decided that’s what we were going to do, I created this Excel sheet that was our own personalized law school ranking system. We created all these columns for the things that mattered to us, cost of living and the size of the town or city, what the job market might look like. We eliminated all the big cities. I turned down a job in New York. We didn’t want to go to New York, DC, LA, Chicago, or any of the big cities. That eliminates a lot of other top law schools, but we wanted to go to a top law school to have a degree that would travel, so if we wanted to go back to Oregon or wherever we winded up wanting to go, I would have a degree from a school that would get me jobs anywhere I went. I went through this whole ranking system and UT was at the top because it was not a big city but still had a legal market. Sophie didn’t want to move after law school. We could stay in Austin, a fairly decent cost of living at the time. That’s what brought us here. We saw, “Austin looks good. Let’s go.” We loved it. We never wanted to leave. Jobs happened and we ended up in Dallas.

You practiced here in Austin for a while though, if I remember.

TALP 43 | Effective Storytelling

Effective Storytelling: Legal briefs must be made in a way that catches attention and is set apart from every other contract case that the client has read.

 

Including law school, we were there for almost eight years. It was about almost five years after law school. I was at Akin Gump there in Austin. The Austin office was shrinking, and it was also in the wake of economic hard times. Austin’s job market was terrible, which was part of why the Austin office of Akin Gump was shrinking. It’s gone. They don’t have an office in Austin anymore. It was in those circumstances that I moved up to Dallas.

When you came out of law school, did you have an interest in doing appellate law or did it find you once you got into the practice itself?

No. I knew first-year law school. I figured out research and writing, it was the most academic of any practice area. I wanted to keep doing what I was doing. I do what I did as an English professor minus the teaching. That’s why I do as many of the CLE presentations as I can do because that’s how I get my teaching fix.

I’ve noticed that you still show up here in Austin, or at least before the pandemic, regularly. I’ve noticed, too, on that same topic that one of your areas of interest seems to be the United States Supreme Court case law and practice. How did you get interested in that?

That started in law school, too. It’s the Supreme Court opinions that you’re reading in a lot of your coursework. My political interests also dovetailed with the politics of the court and appointment controversies. It’s been an interest since that first semester of law school I came out. I didn’t clerk because I was older. I started law school at 34 and we had four kids. We had our fourth while I was in law school and then we had number five after law school. The whole point of leaving academia was to try to settle down somewhere, not keep hopping around from city to city. Moving somewhere for a one-year clerkship and then trying to move somewhere else after that wasn’t an option.

I didn’t clerk, but I knew immediately I wanted to do appellate stuff and Supreme Court stuff, if possible. Tom Goldstein was at Akin Gump. He was the one who pioneered the whole search for circuit splits or other cert-worthy issues and try to get cases before the court strategically. I hopped right into that right out of law school. I was trying to find a good cert-worthy case that I could try to get up to the court and was involved in a lot of petitions and other stuff for a while. I got too busy with regular practice to keep pursuing that fervently, but I still follow the court, it’s always been an interest. Supreme Court review is the CLE presentation I give most often.

What practice do you do? Is it a general civil practice on the appellate side, or are there things that you specialize in?

It’s anything and everything. For the first several years, I was involved in a lot of class action stuff that seems to be a dominant area. It’s always been a good split between federal and state appellate work, but it seems like I’ve been in a lot more state court. I joined Kilpatrick several years ago. They have a strong Native American law practice. I’ve been involved in a number of those cases. That’s become a newer practice area for me. Also, a lot more patent IP related issues at Kilpatrick, which is another big practice area. Those two areas are newer to me, and there’s an emphasis in those practice areas, but still, it’s anything and everything. The state court stuff is a lot of contract disputes, over the last years, a lot of property disputes that I’ve been handling.

There was a merger a few years back. Kilpatrick, the current version of it is a merger of a couple of large firms as I remember.

To affect your readers in a huge way, start by writing a compelling and clear story. Click To Tweet

Several years ago, the Atlanta-based Kilpatrick firm merged with the Townsend & Townsend West Coast IP firm. That formed the firm as it is. They moved into Texas. The Dallas and Houston office opened several years ago. It’s still a new firm to Texas, but a big nationwide international law firm that isn’t well-known to Texas because it’s still relatively new here.

We wanted to talk to you about legal writing. You come to legal writing from an interesting background with more of a creative writing literature course of study before you went to law school. How does that experience and education impact the way that you do your legal writing? Do you feel like you do it differently because of that?

I had two modes of writing. I had the creative writing background and did a lot of that, but I also was this academic literary scholar mode of writing that was full of semi-colons and long paragraphs. I got to law school particularly because you read a lot of old Supreme Court opinions. We have that archaic language and can sometimes be not well-written in legal writing terms. My worst grade in my first semester was my legal writing grade because I was trying to write like an academic. It was complex and convoluted. It took me a semester to get the mode of writing I needed to tap into more, which was the creative writing side and try to be simpler and more direct.

The biggest thing that I do, I don’t know if it’s different from anybody else, but I was deeper into it before coming into the practice of law than other people. That sense of narrative or storytelling for the statement of facts, that’s a huge influence for me. Trying to tell that story in a compelling, clear way. Trying to have an effect on the reader because you’ve got a reader who you want to affect. That’s the biggest thing for me, making that shift away from academic writing through the law school experience and then practice, trying to tap more into the narrative storytelling side of the law. Even when you’re not in the statement of facts, even when you’re making a legal argument, there’s a certain storytelling quality to it.

Do you wrangle with court counsel about the facts that are necessary to be included? The facts versus the ones that are necessary? It’s a common perception. Legal writing circles say that you should only tell the court what it needs to know to decide the case, but in many cases, there is more to the story. I would think that there would be some tension between the storyteller and you and the lawyer on that run.

On the first question, there’s a lot of wrangling with trial counsel and clients about what we do and don’t need to put into the brief. I get that that was a big deal in the trial court. Everybody cared about that a lot, but we don’t care about it. There is some wrangling about that. On the second question about the tension between the storytelling and the facts that the court needs to know, I’d say no. Chekhov had this famous line. I’m paraphrasing because I don’t remember word for word, something about, “If a gun appears above the mantle, it better appear later in the story.”

In good fiction writing, particularly short story writing, because we’re not writing novels in our briefs, this is more of a short story. In good short story writing, no word is unnecessary. You’re trying to make every word in every detail matter for whatever the effect is you’re trying to create. There’s not any tension with the legal writing, because I’m not putting any fact in there unless there’s a reason. The reasons aren’t like, “This fact might not be relevant to any of the legal arguments.” It still might matter because I’m trying to have an effect on the reader and you need to know this fact because this might shift the way you see this case, even if it’s not relevant to the legal arguments later. Something happened on January 18th. If that’s not relevant to any of the legal arguments, then it’s not going to be something that creates an effect.

It may impact your storytelling approach. I liked describing it that way. That’s a great way to put it, especially with the statement of facts because they can be dry a lot of times, especially in your contract disputes, not a lot of super interesting things go on in some of the contract disputes. If you can tell it in a way that makes it at least the most interesting and the way to hook your reader into, “Here’s what matters about this. Here’s why it’s important.” Other than some people negotiated a document, they signed it and then it turns out that what they contemplated didn’t happen and something worse happens. You have to make that in a way that it catches their attention and sets it apart from every other contract case that they read.

I’m not averse to having a statement of facts that’s three paragraphs long and now let’s move on. You can’t say they entered into a contract and someone didn’t do something. You can’t do that. Sometimes, you can. That’s all that happened. That’s all that’s relevant. If the facts section is two paragraphs to say, “Here’s who these people are. They entered into a contract and someone didn’t do it.” If that’s all your facts section is, that’s okay. Why bore the reader with three more pages of a bunch of detail that doesn’t matter to any of the arguments you’re making?

That’s a good thing to remember. It is okay to cut it off. You don’t have to have five pages for the sake of having five pages if it’s not details that make that much difference to the ultimate question that the court is going to have to decide.

TALP 43 | Effective Storytelling

Effective Storytelling: One of the biggest mistakes in legal writing is assuming too much about what the judge or the panel will understand.

 

You don’t need block quotes from the contract in most cases.

Big long block quotes of deposition testimony where there’s one line.

What about from the teaching side of things? You taught for a while, having gone through the process of teaching and even doing CLEs, does that influence the way you tell your story or the way you tell your legal arguments? We had Judge Costa on here. He said the most important job he ever did was teaching elementary school right after college for Teach For America, because for him, that changed the way that he makes his legal arguments and analyzes things and breaks things down. Do you feel like teaching changed the way that you tell your stories?

It has an effect on oral argument presentation, trying to figure out how to organize information and present it as clearly as possible to a room full of smart students who don’t know the details about this particular thing. In oral argument, it’s had an impact. There’s not a hard line between the teaching and the research, writing, and academic side of what I used to do. It’s trying to convey information, whether it’s in-person orally, or in writing, trying to convey information that’s important in the most effective way possible. It augmented or supplemented the other background I had for how to try to present things as clearly, as succinctly. The teaching, you’ve got 45, 50 minutes to get a bunch of information across, and hope people who are listening understand you and get it. You have to organize and be as clear as possible, anticipate what kinds of questions you might get.

It does help in terms of knowing your audience. You’re dealing with, in most cases, a panel of three judges who are going to be able to grasp what you say, they’re going to understand the law and you’re not trying to teach them how to write. Your job is to educate them in a way that’s persuasive. It sounds like how you approach your briefs is you’re riding through your audience. Use the fact that they’re at a certain level of understanding and, in most cases, they’re going to have read your stuff before you show up for oral argument, which is more than you can say for the average college student.

To know your audience is important, but it is hard to do that. The way I would want to know my audience is I want to know who is on my panel when I write this brief. We don’t ever know that. No court announces the panel before briefs have been filed. You can know your audience, but only in generic terms. It’s smart people who know some stuff, but you don’t know what they know because you don’t know who they are.

Especially in federal court.

To know your audience was huge before I went to law school to become a lawyer in terms of how to write effectively, and I would teach it in my writing classes about knowing your audience and trying to target your audience using rhetorical tools in ways that target the audience that you’re writing to. I didn’t think about it until you guys brought it up, but that’s been a big influence on how I’ve written as a lawyer.

One advantage that you have with judges, even generalist judges, is at least you had the shared language of the law at a level of understanding. It’s a bit higher than you’re trying to break down some more difficult and esoteric literary concepts for students who don’t have that background. It’s your job to unpack those and explain it to them. With the law, at least you have a shared baseline, although not the particular issue in your case. You can skip over some of the introductory stuff a lot of times because you can jump into the more complex stuff without having to explain the base level stuff.

In a good short story writing, no word is unnecessary. Click To Tweet

I would also throw in one of the biggest mistakes or weaknesses that I see in a lot of legal writing is assuming too much about what the judge or the panel is going to understand. What you’re referring to is on the front end. You don’t have to lay all the introductory groundwork that you might have to do for someone who doesn’t know anything about the law.

Standards of review, the record, the basic concepts that you guys aren’t going to have to quarrel with because the standard of review is what it is. Maybe there’s a dispute over that, but they know what you mean when you say it’s either abusive discretion or legal sufficiency as opposed to, what are we talking about here?

You can assume a certain basic knowledge and only give them what they need to know, but on the back end, what happens is I will read briefs or drafts of briefs where, “This case says this and this case says this.” We win, but there’s an assumption that the audience gets how those pieces fit together that you win. Sometimes you have to spell out why the fact that this case says this means we win. That’s missing a lot of times where you assume the judge, “If the judge sees that, then she’s going to get it.” No, not necessarily. You’ve got to still connect the dots.

That’s consistent with what I see a lot. Especially in real specific areas of the law, “The law says this, and we win.” If they don’t know that area of the law or understand it, you do have to back up and say, “Here’s where this rule comes from. Here’s the reason for it. Here’s why it’s important here, and it drives the outcome. Here are our facts that put us in line with this.” If you say, “In this area of the law, it’s this, and we win,” you’re skipping steps. Especially in areas where people are using a lot of abbreviations and technical terms that you have to be careful to make that extra clear.

Your brief has a glossary. That’s a bad sign. We’re talking about writing for appellate judges. A lot of us are writing for trial judges too. Do you find that your approach changes somewhat when you’re talking to a trial judge? It seems like you can’t assume the same baseline with the trial judge. I’m curious about that.

I don’t know that I change my approach if I’m helping to write a motion for summary judgement versus an opening brief at the Appellate Court. My baseline assumption is, if you’re a judge, regardless of what level you’re judging at, you’re a smart person who knows some stuff about the law. Even in Texas where judges are elected and aren’t always the smartest person who knows everything about the law. I don’t think you even have to have a law degree to get elected as a judge in Texas. You assume that they are smart people who know some stuff. That’s my baseline. I set out to explain what needs to be explained. Even for someone who knows a lot about that particular practice area, it still doesn’t hurt to lay the groundwork for what your more technical arguments are going to be built on.

I don’t tell too many war stories when we feature our guests and their experiences. The time in the not-too-distant past when I was in a court in a neighboring county, a county court level judge did not know or understand what the Texas Citizens Participation Act was. Going back to the concept of knowing your audience. We might assume that most trial judges and the state civil trial judges would know what the TCPA does and what it is. Even then, it goes back to the idea of education. I’m not sure what the right approach would be because I don’t think it’s reasonable to think that most of the judges have heard of or even applied the TCPA. It comes back to the idea of start with the basic blocks and then build up from there.

Even though we have mostly elected judiciary, these people are smart enough to get elected, which means that they’ve got some level of intelligent lawyers. The lesson in that is don’t assume that your judge knows what you might think to be the baseline if you’re in the trial court. Appellate judges, a different story because their timeline is different. Most of them have good staff that can help them get up to speed. Thinking back to that little story, it blew me away at the time that there was a trial judge at the state that hadn’t had anything to do with the TCPA.

It’s not a state court judge. We had a federal court case with a federal judge who had never encountered a statute that the whole case was about. It’s not the TCPA. You would think everybody’s encountered that, but still, it wasn’t an obscure statute. It was one where you think you came across that once in a while. The danger of knowing your audience is assuming too much and assuming that they know more than they know. You think you know your audience and that they know stuff, and you can end up assuming they know more than they do. Assume that they’re smart and you don’t have to start with the constitution it was ratified in, but you can lay the basic foundation of, “Here’s what the statute is. Here’s what it does.”

It doesn’t apply to state court, but I still write this way in state court. I would love for a judge to cut and paste the groundwork portion of the legal argument from my brief into their opinion. A lot of opinions they’ll start out with, “Here’s what the statute is. Here’s what it does. Here’s the provision, that’s an issue.” It’s walking through to where we are in this case, here’s the groundwork stuff. I’d love it if a judge cuts and pastes that, and I made their job easier by letting them take that stuff into their opinion. State court judges aren’t writing opinions at the trial court level, but I’m still going to provide that basic stuff, even if they are familiar with that, this is how we get to the argument. Don’t take more than a couple of paragraphs to do it, but this is how we get to where we’re at in this case. That’s worth including.

TALP 43 | Effective Storytelling

Effective Storytelling: By assuming that your audience knows too much, you can end up assuming they know more than they do.

 

One area I wanted to touch on that I feel like it’s a bit law adjacent but I know from following you on Twitter, you have an expertise in humor, which is an interesting area to have an expertise in. It’s something that I see more and more judges seem to try and work it into their opinions. Sometimes you see advocates try and work it into their briefing, which I feel like is a dangerous thing to do. I’m curious about your perspective as you see judges trying to work humor and what you would call creativity into the way that they write their opinions, some of the footnotes and references. I wanted to get your take on it as someone who’s studied humor as part of your education and background.

I’m a huge fan of humor everywhere but in legal writing.

I understand that.

I would not ever try to be funny. There’s some gray area. There are some ways where you might attempt to be flippant or snarky at times. There are certain things you can do. There’s an overlap that enters into the realm of potential humor or something. The folksiness that some judges write into their opinions. Maybe there’s a lightheartedness to that’s in the gray area overlapping with humor. I wouldn’t recommend trying to be funny, not in a brief and not in a judicial opinion. Trying to be clear, succinct, and right for a layperson audience, that’s all great. Sometimes some of that might involve a folksiness or informality, which is fine and great. I’m not a big fan of the cute stuff, and I would never advocate trying to be funny, not with legal matters. These are always serious matters. That’s why people are in court. It doesn’t matter how little it is. It’s not a funny thing. People don’t take the time to go to court to be funny. I’m not a fan of judicial opinions that make light of serious situations. You’ll see that even in a criminal sentencing case. It’s tone-deaf.

It seems like we’re seeing less formality, even before the Circuit Courts. Seemingly quite as much in the State Appellate Courts. There’s been a lot of highly publicized opinions, but it seems like we’re seeing a lot less formality in a few more literary references, which go right over my head most of the time. I’m doing good to try to explain two sentences together most of the time. You might have an opinion about the use of literary references, logical parallels which we have seen with some increasing frequency even in state court appellate opinions, what do you think?

I like creativity and informality. Informality is great. I’d love to see more contractions and common speak type of language. The more accessible judicial opinions are to the everyday reader is good. The literary illusions or other things like that, that’s all good. There’s a line somewhere. It’s hard to identify where the line is. There’s a line somewhere where you’re showing off, that’s not accomplishing. Everything should serve a real purpose in legal writing. That goes for the judicial opinion writing as well as the brief writing. If there’s a gun over the mantle, it better come up late. The same thing goes for literary reference. If an allusion to Huck Finn gets you somewhere, it helps to make a point or it furthers the narrative in some way.

There’s a certain tone or a certain effect that you’re trying to create for the reader, and this is part of it, that’s all great. If you’re showing off, there’s a line somewhere. Sometimes it gets crossed. Some of the folksy, creativity stuff, or the informality, some of it is snarky. There are situations where lawyers deserve to be chastised for something that they’re doing. I don’t think the courts do that enough. There’s a lot of crap that lawyers do that they ought to get chastised and sanctioned more often for, but I don’t think snarkiness is the way to do it. Say, “This is inappropriate, don’t do that.” If applicable, “Here’s the sanctioned amount for what you did.” The cutesy, snarky stuff, that starts feeling like you’re writing an op-ed rather than a serious legal opinion. It is hard to say where the line is sometimes.

There’s the element of power and balance that adds to it too, even if it wasn’t intended to be snarky sometimes, it reads that way based on the relative positions of the people there. The same thing with humor, something that might be funny going in a different direction when it’s coming, punching down, it takes some of that effect out.

That is the risk with judicial opinions. Almost by nature, you are always punching down if you’re punching because you’re a judge.

The biggest thing about contractions is the misconception that they're informal. Click To Tweet

At first, what struck me when I started seeing contractions in the formal leader you’re writing. Periodically it would start showing up in judicial opinions. The old school, educated in the ‘90s, law school conservative part of me was like, “Don’t do that.” As we’ve gone along, we’ve seen some of these other things happen in legal writing. I’m starting to see that at times, in the right setting, they can be effective. It’s interesting to see over the years how legal writing has changed, not just the way that they teach legal writing in the law schools, but how it’s being implemented. I always thought as a legal writer, we want to maintain a certain level of formality as a matter of decorum and respect for the core. I would still subscribe to that view, but I’ve come around for what it’s worth to the occasional use of the contraction when it helps make my point.

The biggest thing about contractions is the misconception that they’re informal. That’s what 97% of people believe, they’re informal, and they’re not. Contractions have been around forever. They’re not a part of formal writing. I gathered at one point a bunch of examples of contractions in judicial opinions. Going back 100 years ago, there were contractions in US Supreme Court opinions. They’re not common, but they’re there. If I recall correctly, there’s even a contraction in the constitution somewhere. It’s the declaration of independence. One of those founding documents, there’s a contraction in one of them. It’s not the informal slimy thing that people tend to think it is, it’s a part of writing. For me, rhythm is important in writing. How does that sentence sound in my head?

When I string these sentences together, is there a certain rhythm or feel? I read out loud when I’m editing. I want it to sound right. Sometimes you can’t get that rhythm to sound right without the contraction. It ends up sounding stilted and overly formal. I don’t think there’s anything wrong with contractions. I’m a big advocate of contractions. We all have ticks. In our editing process, we have to reduce the number of times that we do that. Three of my ticks are a lot of dashes, a lot of contractions, and a lot of sentences starting with “and.” I have a lot of those out. I overuse those three things, but contractions are a good way to get the sentence right.

One other area we wanted to talk to you about is social media and Twitter. The way I got to know of you was on Twitter. You have a big Twitter following. You’re active on there, both from the legal side and then from the political side. How did you get involved in that?

I don’t remember why. I heard about this thing called Twitter and I tried to get on it and figure out, “What is this?” I was a third-year law student. I got on to try to figure out what it was. I set up a couple of accounts. I set up a Texas Appeals account and then The Fifth Circuit Appeals account. My plan was, I’m going to tweet out interesting decisions from these courts. At first, that’s all I did from a couple of different accounts. I have 3 or 4 accounts. A couple of them were practice area focused. I was going to like interesting opinions that came out in a practice area or something. That’s how I started on Twitter. I thought it would be that. I would tweet out interesting opinions. It evolved into the whole Appellate Twitter, legal writing community with discussing, at first, it was mostly legal writing stuff, discussing one space or two spaces arguing at length over things like that. What it was then for a few years is appellate practice, legal writing, Supreme Court stuff. I whittled down my accounts to the one account that I have. I have always been politically interested in and active but kept that far away from Twitter. That’s what Facebook was for a while.

The whole Trump thing started happening in 2016. I felt like I cannot say anything about what’s going on here. I know there will be some readers who disagree, but to me, I saw early in 2016, “This is horrible, bad, and somebody needs to say something about how bad this is. I cannot say anything about how bad this is.” I only had 1,000 or 2,000 followers who were all lawyers in the legal writing, Appellate Twitter community. I wrote that thread about the humor stuff, in direct response to a joking comment that Trump had made during the 2016 campaign, I wrote that thread about joking and humor. You mentioned I have a bunch of followers, but most of those are people who became my follower after reading that thread. I’ve gained more followers because of the political comments and stuff that I’ve made. I’m quickly weaning myself away from all of that. I don’t think he’s going away, but he’s at least not going to be in office anymore. I feel less need to politicize my Twitter account. I don’t know if I’ll lose thousands upon thousands of followers once my Twitter account is fully returned to one space versus two spaces. That’s where it’s headed. Fair warning to everybody who’s out there, that’s where it’s headed quickly.

Expect a lot more font discussions than politics.

Let’s talk fonts, punctuation marks, and other things because I don’t want to talk about the other stuff anymore. I’m tired of it.

We’re happy to see you on Twitter and to follow you. I learned something. You’re one of the people, Jason, that I learned things based on Twitter, not specifically to the political stuff, but there’s enough legal writing and appellate advocacy in there still that you’ve retained the interest of the lawyers. If you lose a few followers because of politics, so be it. We can all stand to deal with a little less interesting news cycle for a while. Before we go, we wanted to make sure and give you the chance, like we do with all our guests, to offer up a specific tip or a war story for the readers. I’m curious what you might come up with on that.

I thought about this a bit. As appellate lawyers, we don’t have the same opportunity to collect war stories that the trial lawyers have. Our war stories are always more boring than any of the war stories that the trial lawyers can come up with.

TALP 43 | Effective Storytelling

Effective Storytelling: There is a gray area between putting lightheartedness in your legal briefs and trying to be funny and snarky.

 

Objectively, but not to other appellate.

I don’t know that I have a lot, and I’m also not the greatest collector of war stories, things happen that are crazy, but then I move on and forget about it. A tip I would offer is always to read the statute. Always go and read the text of the thing that you’re arguing over. I’ve come in many times to help on post-judgment motions or appellate matters where all the briefing below was from case law and not focusing on the language of the actual statute, whatever the language is, that’s an issue. There’s a lot of, “Let’s back up, let’s zoom out for a second and look at the language here so that we can start crafting our argument from that.” My tip is to start with where it starts. Read the language that’s an issue. Read the provisions of the statute that apply in the case and start from there. We often skip right to case law and other kinds of research when we started digging in and making arguments from all of that. That’s my not-groundbreaking tip, but yet needed.

Read the other provisions around it. The section before, the section after. Make sure you know the context that sits in.

Those statutory definitions of terms, all those things.

Better than you think it is, Jason, as far as a tip, we could all be reminded of that. Jason, this has been great. Thanks for being with us. We appreciate you taking the time.

Thanks for having me again and for all the kind words. I appreciate it.

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About Jason Steed

TALP 43 | Effective StorytellingJason Steed is an appellate attorney with extensive experience in both state and federal appellate courts across the nation, including the Supreme Court of the United States, the Supreme Court of Texas, the Supreme Court of California, and the Supreme Court of Alaska. His two greatest strengths are his creative legal thinking and his incisive legal writing. Jason has represented clients in a variety of practice areas, including complex commercial litigation, class actions, employment litigation, qui tam/FCA litigation, product liability, and constitutional law. He frequently handles arbitration issues in court—such as compelling or avoiding arbitration, and confirming or vacating arbitration awards. And he is often hired to consult or collaborate with trial counsel to help shape and preserve legal arguments for any future appeal.

As a young associate, Jason came up with a novel legal argument that won dismissal of a $1-billion putative class action. And in 2017 he was part of a legal team that won reversal of an $800-million jury verdict. A former English professor and an award-winning writer, Jason’s briefs and appellate advocacy have been praised by both state and federal judges. One federal judge described Jason in a written opinion as “an excellent lawyer” who “provided vigorous, high-quality legal representation.”

Jason was recognized in 2020 and 2021 by The Best Lawyers in America® for Appellate Law. He was recognized in 2017 and 2018 as one of the “Best Lawyers in Dallas” by D Magazine. Jason was named a Texas “Rising Star” in 2016, 2017, 2018 and 2019 for Appellate Law and one of the “Up-and-Coming 100” in 2019 by Super Lawyers magazine. He was included among the 2016 “Fastcase 50” for his innovative contributions to legal practice. And Jason was named “Appellate Lawyer of the Week” by Texas Lawyer in July 2015, following a big win at the Supreme Court of Texas.

Jason regularly publishes articles and gives presentations on the U.S. Supreme Court, legal writing, and other topics relevant to appellate practice. He is also active on Twitter (@5thCircAppeals) as a contributor to the #AppellateTwitter community.

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