This article originally appeared in The National Law Journal on July 27, 2022.
By Judge Carlos T. Bea and Ben Feuer
The Spanish are, perhaps, not particularly well known for the speed and efficiency of their legal system. Spain has twice the number of lawsuits as does Germany, for example, but only a third of the judges per capita.
The Spanish are known, however, for their many wise sayings and witty aphorisms, passed down over centuries, which they call refranes. And, it turns out, some of these refranes carry with them useful lessons for American appellate lawyers today.
Your authors are a federal appellate judge who sits on the Ninth Circuit – born in Spain and, in the Spanish way, accustomed to invoking refranes frequently – and his former law clerk, now a San Francisco appellate attorney, who, in the former law clerk way, is accustomed to nodding politely each time he hears refranes invoked.
The two of them agree that there is much wisdom in some of these old Spanish sayings.
1. Al pan, pan y al vino, vino: “Call bread, ‘bread’, and call wine, ‘wine’.”
This refrán means to call things what they are. As rhetorical devices, euphemisms can convey a kind of shiftiness – that the author is not a straight shooter. They are often best avoided entirely.
Appellate briefs are an art, but sometimes effective art is blunt. Don’t pretend bad facts or bad precedents don’t exist, or try to dance around them in ways that seem avoidant. The judges will probably pick up on your two-step and wonder why you’re trying so hard to dodge the problem. They might conclude that you don’t have a way to deal with it – which is not something you want them thinking.
Rather, if there’s a bad fact or a bad precedent in your appeal, acknowledge it head on, call it what it is, and then explain directly why it shouldn’t control the outcome of your case.
2. A caballo viejo, poco verde: “Don’t feed an old horse much young grass.”
Young grass is the richest and fattiest – it’s good for young animals but can be too much for the digestion of older ones. In American law, the courts are also old. Not the judges – necessarily – but the common law American courts apply is based on iterative precedents that have often sculpted the law slowly over decades or centuries.
Thus, relying on longstanding precedents and tried-and-tested theories will probably succeed a lot more often than advocating for novel, unique, or overly creative interpretations of statutes or and case law. When you think you’ve come up with a brilliant new theory that no one has ever identified before, you probably need to take a step back and rethink. Chances are, you haven’t figured out a reason that the First Amendment prevents your client from being prosecuted for defrauding a group of retirees out of their life savings, or why Marbury v. Madison means your client’s ex-wife can’t vaccinate their children against COVID. Indeed, pretty much any a brief quotes the First Amendment or cites a single sentence from a Supreme Court case without other context, it’s a big red flag to the judges and their clerks.
So think carefully before trying to shoot the moon. Rely on established law as much as possible. If you need the court to expand an existing doctrine, you’ll probably have a lot more success taking baby steps. Let the old horses eat the grass they’re used to, rather than shoveling young turf at them all at once.
3. Camino estrecho para ti; camino ancho para mi: “A narrow path for thee; a wide path for me.”
This refrán is a rhetorical challenge meant to illustrate that your opponent’s position is intellectually inconsistent and, therefore, unjust. For appellate lawyers, this highlights a technique for dealing with situations when your opponent is arguing for a rule that is not even-handed, and only benefits him.
For example, in a contract dispute where the parties are battling over the correct interpretation of contractual terms, your opponent might contend that one term should be understood in his favor based on the context of the sentence in which it arises, while another term should be understood in his favor based on the dictionary definition of the word. This kind of inconsistency offends notions of basic fairness and that on its own should be called out – maybe there’s a good reason to apply different methods of interpretation to different parts of the same contract, but it’s going to be a trickly sell.
Everyone should walk the same size path, at least in the eyes of the law.
4. El mono vestido de seda, mono se queda: “Even though you dress a monkey in silks, he remains a monkey.”
A bad legal argument is a bad legal argument. Draping it in virtuous-sounding adjectives and adorning it with appeals to emotion are unlikely to mask its fundamental flaws. The appellate judges will probably see past the baubles and you’ll wind up with little more than diminished credibility.
Part of the responsibility of an experienced appellate lawyer is to whittle down all the possible arguments you might make into a couple of good ones on which you might actually win. Best to focus your limited words on those.
5. A falta de pan, buenas son tortas: “In the absence of bread, crusts will do.”
Ideally, in your appellate brief, you will be able raise on-point, in-circuit precedent that commands your victory, giving the court thick, hearty bread on which to feast.
But that precedent may not exist. The issue may never have arisen in your circuit. If that happens, but don’t hesitate to find some crusts – look for out-of-circuit precedent that gets as close as possible to your case. While it’s not as good as in-circuit bread, it will always carry a lot of weight: A circuit court opinion that creates a split with another circuit is subject to potential en banc review. Appellate judges will reflect especially carefully before creating such a division, and may be perfectly willing to dine on crusts to avoid one.
And if the in-circuit precedent goes against you? Do your best to distinguish that precedent and be sure to point out all the other-circuit authority that runs the other way. Even if the panel doesn’t buy your distinction, you may get lucky and one or more of the judges will write a concurrence that mentions your circuit’s authority is anomalous and worthy of en banc review. That will surely help your eventual petition for en banc rehearing – or certiorari.
6. Todo se contagia, menos la belleza: “Everything is contagious, except good looks.”
As an appellate lawyer, you must be cautious with whom you align your client. If your client had a despicable co-defendant, consider whether that party should file a separate brief with separate counsel. If your client has raised an issue of law important to unpopular groups, consider whether they should be dissuaded from participating as amici curiae despite the help amici often otherwise bring. If Supreme Court precedent includes dicta helpful to your cause, but if the case is Korematsu v. United States or Plessy v. Ferguson, find a different case with similar dicta. Even authority from a lower court would probably be better to cite.
Appellate judges are not fools. If you associate your client with parties and cases that bring with them a lot of problematic baggage, you can expect to carry some of that baggage with you.
7. La venganza es un plato que los conocidos comen frío: “Revenge is a dish that connoisseurs eat cold.”
Don’t look on your appeal as a vehicle to get back at a trial judge you think treated you poorly. Instead, focus your appellate arguments on attacking the trial judge’s ruling.
Personal attacks on trial judges and unfounded accusations of bias or lunacy are considered awful form, for one. They do nothing to help your legal arguments, even if it makes you feel better to vent.
Moreover, the trial judge might be pals with one or more of the appellate judges evaluating your appeal. It’s a small world. Indeed, the trial judge might even be an appellate judge sitting by designation, and he or she will certainly have friends on the appellate court.
But perhaps the best reason not to attack the trial judge personally is the self-interested one: on remand, you’re probably going to be right back before the same judge. Most trial judges are professionals and don’t take getting reversed personally, but a brief overflowing with personal vitriol and criticisms of the judge beyond your disagreements with his or her interpretation of law is another matter.
The best revenge on a trial judge who has treated you harshly is simply to have his action reversed.
8. Incluso en el infierno se necesita amigos: “Even in hell you need friends.”
Be nice – or at least mannerly – to your opposing counsel. Remember that good manners are a necessary lubricant for a free and diverse society to operate. They’re especially critical for the smooth functioning of an adversarial system of justice like ours.
So agree to reasonable extension requests. Respond to emails and messages. Say hello and shake his or her hand at the argument. Being a jerk may sometimes have strategic value at the trial court level, unfortunately – but in at appellate level, it gets you absolutely nowhere. And you never know when having a friend will work out in your favor.
* * *
We hope you take these refranes to heart for your next appeal. They may be old sayings – some from before Cervantes wrote Don Quixote – but that alone is no reason to dismiss them. After all, mas sabe el diablo por viejo que por diablo: “the Devil knows more because he is old than because he is the Devil.”
Carlos Tiburcio Bea has served as a judge on the U.S. Court of Appeals for the Ninth Circuit since 2003, and was a California state trial judge for more than a decade prior. Born in Spain — a nation to which he returns annually — he and his family fled at the beginning of World War II, eventually settling in California. He played basketball for the Cuban National Basketball Team in the 1952 Helsinki Olympics and later for Real Madrid, and he is the only federal judge to have once been ordered deported by American immigration authorities, an order that was reversed on appeal, leading to his U.S. citizenship in 1958. You can read the Ninth Judicial Circuit Historical Society’s Oral History of Judge Bea by clicking here — keep an eye out for the refrán.
Ben Feuer, who clerked for Judge Bea from 2008-2009, is the chairman of the Complex Appellate Litigation Group LLP, a 20-attorney appellate boutique that represents large corporations, small businesses, and individuals in appeals, appellate writs, and Supreme Court proceedings nationwide. Ben has been called one of the “top appellate litigators in California” by a national news network and an “Elite Boutique Trailblazer” by the National Law Journal.
This article is copyright © in the year of publication above, by both the original publisher and the Complex Appellate Litigation Group. This article may not be reprinted or reposted without written permission.