Re: Skilling/Enron Appeal

A few days ago, the WSJ Law Blog published a post, here, discussing Jeffrey Skilling's 237 page appellate brief in the Enron criminal prosecution. Since I concentrate in appellate practice and commercial litigation, I thought the tome was worth taking a look at (although I did not have time to read the whole thing).

Generally, appellate briefs have strict page and word limits, (in federal court, the limit by default is 14,000 words (i.e., a little over 25 pages of text). Appellate courts also generally discourage bullets and charts, which this particular brief used a great deal. Noticibly absent from the brief, at least the version given to the WSJ, are a table of contents and table of authorities.

O'Melvany and Myers, however, is a good firm, and if you're at the top you get to bend the rules. The brief makes four arguments: (1) the prosecution's legal theory was faulty because "honest services" fraud, i.e. fraud that was meant in good faith to help the shareholders, is a misunderstanding of the criminal law, which requires intent; (2) the jury instructions were bias; (3) the jury was bias, both due to incomplete questioning by the court during jury selection and the refusal to change the venue from Houston, a city that was particularly hurt by the Enron callapse; and (4) prosecutorial misconduct consisting of withhelding and destroying evidence and coercing witnesses.

To weed out these arguments, however, you will need to read eleven pages into the brief. The strategy is clear: overwhelm the appellate court with rhetoric and complex argument so that they can better understand how the jurors and lower court were overwhelmed by the publicity and complexity of this case.

My guess is that the appellate court will grant some extension, perhaps double their ordinary word limit and give the prosecution a higher word limit and additional time to respond, but I think the court will see, as is clear from looking at the brief, that the brief needs an editor to go through and slash the surplus.

One of the main things they teach in legal writing courses is to be succinct and avoid excess verbiage. In practice, this skill is slowly pruned, since -- unfortunately -- the "weight of the evidence" often refers to the literal heft of the papers submitted rather than the substance of the argument. Authorship on the brief is shared by nine attorneys (and, most likely, there are countless unnamed junior associates and researchers) and it seems that the overall editor did not keep the individual writers on as short of a leash as he needed. The arguments are good, and as someone who writes appellate briefs I understand that it is simply painful to cut out days worth of research, or catchy phrases that made you feel clever when you wrote them, but it needs to be done.

One of my pet pieves, although I do it all the time, is co-writing. In every complex matter I've worked on there has been at least one argument that I believe in strongly which is dropped from the final brief. I have a penchant for arguments where my opposition has failed to jump through a technical hoop, and my experience has been that most judges, particularly federal judges, are prone to agreeing with these arguments because they are clear cut: this person was required to do something, they didn't do it, hence, I win. My supervisor, on the other hand, is more a fan of what one of my appellate advocacy professors called "uncle joe" arguments: common sense, fact centered, moral arguments. Which, since judges are human, are persuasive. Overall, however, I can't be too angry about it, because the balance works well. They need someone with a liberal red pen.