AN APPELLATE BOOKSHELF

 

 

[Posted January 7, 2010]  There’’s a lull in appellate proceedings this week, with the CAV taking a week off from releasing opinions and the Supreme Court gearing up for next week’’s session, starting on Tuesday. That gives me a chance to post something on a topic about which I get an occasional question: What’’s on your bookshelf? Some of my readers wonder what reference materials I use, beyond the opinions themselves, in composing my analysis and essays (not to mention my appellate briefs). These materials aren’’t all appellate, or even law-related  If you’’re planning an appellate practice, you’’ll want to consider stocking up on at least some of these, and keeping them within arm’s reach, as I do.

Dictionaries

I have three. No, really; I do. The Merriam-Webster Collegiate (11th Ed.), plus the Oxford English Reference Dictionary (2d Rev’’d Ed.) and a two-volume set called The New Lexicon Webster’s, Encyclopedic Edition. Sometimes you need not just a satisfactory word, but the exact word. The word origins can help you to decide which one is perfect sometimes. And that leads straight to . . .

Etymology

The Facts on File Encyclopedia of Word and Phrase Origins is always a fun read, as it tells the often-outrageous stories behind the development of words and phrases to which we’ve become completely accustomed. I have two more such books that are stationed a bit beyond arm’s reach, but still close enough to consult when I need to: One is Dorothy Auchter’’s Dictionary of Historical Allusions and Eponyms, and the other is Wilfred Funk’’s Word Origins and Their Romantic Stories. All three of these are a joy to peruse for anyone who, like me, enjoys both words and interesting stories.

Style and usage

Ah, now we’’re at the heart of the writer’s craft. I have two books written by Bryan Garner that are never more than 18 inches away from my chair: Modern American Usage (3d Ed.) and A Dictionary of Modern Legal Usage. Unless someone else does all your writing for you, you need to have at least one of these books. I would also gently suggest that they should be opened from time to time, whether it’’s to check on the difference between effect and affect, or to decide on the verb tense that follows the word lest (I’’ll save you the time on this one; it’’s the subjunctive mood). The venerable The Elements of Style (Strunk & White) rests just next to Kingsley Amis’’s often-hilarious The King’’s English on the bookshelf a few feet away.

 

Statutes, rules, and treatises

I have a full set of the Code of Virginia across the room from me, but that’’s way too far away for three volumes. I keep those three readily at hand, so I don’’t need to budge in order to consult them. They are volumes 2, 3B, and 11 of the Lexis printing of the Code, and they contain Titles 8.01 (civil procedure) and 17.1 (courts of record), and the Rules of Court. (I am such a procedure geek that my copy of vol. 11 is color-coded, at least for parts 1, 3, 5, and 5A of the rules. You don’’t have to go that far.) Immediately adjacent are Virginia Rules Annotated and O’’Connor’’s Federal Rules –– Civil Trials. 

 

Here’’s a surprise: An old copy of Burks Pleading and Practice, the standard reference manual for civil practitioners before I was born. Why keep an obsolete book, you ask? Well, occasionally it isn’’t so obsolete after all. Want a discussion of motions craving oyer? Those can still be used in Virginia practice, but it’’s hard to find a comprehensive discussion outside of §332 of this book. (Hint: It’’s not a discovery device; it’’s used for evaluating demurrers.) How about the familiar phrase, “”Note my exception””? This book explains why lawyers have been doing that for decades. Current Code §8.01-384 states that you don’’t need to do it anymore, but word of this change appears to have been slow to circulate around the Commonwealth.

Appellate advocacy

This is the section you were waiting for, right?

First and foremost is my copy of Judge Ruggero Aldisert’’s Winning on Appeal (2d Ed.). I have described this book in the following terms, which I continue to insist will be accurate:

If you’’re ever trying to decide on an appellate lawyer, try visiting one in his office. While you’’re there, casually ask if you can borrow his copy of Aldisert. You will probably get one of two possible answers. The first is, ““What’s an Aldisert?”” If you get this reply, I recommend that you look at your watch, make an excuse, and exit as gracefully as you can. The second answer will be something like, “”No, you can’t borrow it; but I’ll let you sit here and look at it while I watch you.”” That’’s your guy.

 

I also have Virginia CLE’’s excellent treatise, Appellate Practice –– Virginia and Federal Courts, plus the seminar materials (also Virginia CLE) from last year’’s appellate-practice seminar in April. These two sources contain loads of Virginia-specific caselaw, rules, and statutes, plus practical advice on all three. Then there are a couple more books bearing Bryan Garner’’s fingerprints: The Winning Oral Argument, plus Making Your Case: The Art of Persuading Judges, a book he co-authored with some guy named Scalia (who seems to know something about appellate persuasion).

Just across the office, I have Herbert Levy’’s How to Handle an Appeal (4th Ed.) and Judge Ralph Adam Fine’’s The “How-to-Win” Appeal Manual.

 

Other stuff

I keep two atlases close at hand:– one of the world, and the other a road atlas of North America. I also keep a current Virginia road map (issued free by VDOT, to whom I am very grateful) here, because sometimes the location of events I write about is important.

I have no fewer than four collections of quotations that are stationed close enough to hear me sigh. Two are general collections of quotes; one is of legal quotations; and then there’’s The Oxford Dictionary of Humorous Quotations. (I use the last one liberally when I can. You’’re welcome.) I also keep a Blue Book handy for when a citation form is obscure.

 

Across the way, I keep two condensed (single-volume) encyclopedias, a book of anecdotes (the ones on Lincoln alone are worth the price of the book), a world almanac, the New York Public Library Desk Reference, and not one but three thesauruses. The thesauruses are probably wasted space, as I can’’t remember the last time I opened one; that’’s because in order to do well in appellate courts, you need to speak the jurists’’ language, and their language is English.

 

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So which of these things should you have? That depends on your practice, and maybe on your writing style. You’’ll note that there are far more non-law books than there are law books. I believe that if you want to write well, you need to get away from the familiar from time to time. It also helps to have good advice when you’’re stuck or unsure, because no one wants to be perceived as semi-literate. (That’’s why I consult the usage books so often.)

 

If you’’re thinking of picking one or more of these up, here’’s a good clue as to how I rate their relative value: The ones across the room from me are in the second tier of usefulness. The really useful ones are always comfortably within reach.

Did I mention that I’’m also a book collector . . .?