The Kind of Briefs That Get Picked Up First

When Super Lawyers reached out to David Gunn to talk about his reputation as a master of writing engaging and effective appellate briefs, he agreed to an interview, but—true to form—first sent a response in writing: a 1,700-word email.

It wasn’t as technical as you might expect from a man who studied chemical engineering at M.I.T. and translates dead languages as a hobby. It was organized and helpful, with links to a sampling of Texas Supreme Court briefs he’s penned, along with a description of the technique employed in each—often a graphic or analogy—to punctuate his point, and the pertinent page number.

“I’m trying to make your job easier,” he explained. “My whole philosophy of legal writing is: It’s not about me. For any appellate lawyer, writing has one overarching purpose: Help the judges do their jobs well.”

David Keltner of Kelly Hart, a former justice on the Texas Court of Appeals who has since tried a number of cases with Gunn, both as adversary and co-counsel, says you can always spot a Gunn brief because it’s innovative and attention-grabbing, but without the cheap shock value used by some. “David’s a very disciplined writer,” Keltner says. “He does not waste words.” Keltner is never surprised when he sees Gunn’s wording work its way verbatim into a court’s opinion.

“Appellate law is 95 percent reading and writing; there’s very little stand-on-your-feet and talk to the judges,” Gunn says. “You should think of the brief as the trial. It’s my world’s—the appellate world’s—equivalent of the trial.”

Keltner notes that Gunn is fascinated with the derivation of words and used to meet regularly with an English professor from Rice University to read ancient English aloud while they drank mead. Since the pandemic, Gunn has taken a weekly Zoom class on Babylonian cuneiform in which he reads and translates The Epic of Gilgamesh; he also reads murder mysteries in Spanish to keep the language skills fresh.

“He looks for analogies—and finds them more often than any person I’ve seen,” Keltner says. “He tries to get something that might be an esoteric point and, through analogy, explains why the ruling against him would harm the law. He’s one of the few appellate lawyers who really understand that courts don’t write on blank slates. You’ve got to be a little bit of a historian and understand how an issue grew up and the area of law it grew up in. Then he takes that and says the next step is … not what the other side says it is.”

“One of my missions has always been to be able to explain a case to a nonlawyer,” Gunn says. “I want to be able to explain it at my kitchen table to my wife and kids if they ask, ‘What are you working on?’ If I really understand it, I can explain it in lay language.” Gunn and his wife, Gina, met at a church in Houston in 1989, and they have two daughters, Kirsten and Allison.

Gunn grew up in Houston, with dreams of being a scientist, but after earning his graduate degree at MIT, he realized the laboratory didn’t provide the social interaction he craved. His father, a patent lawyer, suggested he try law school. When he finished at Baylor, undecided on a practice area, his plan was to literally throw darts at the law school bulletin board of handwritten job postings to see where he’d land. He was saved from that fate by a friend of his father, who offered him a clerkship at the 14th Court
of Appeals.

“That put me on my career path as an appellate lawyer,” he says. “I don’t think I would have made it as a jury lawyer. I don’t radiate the charisma that some of those trial lawyers do. … Any appellate judge will tell you the ball game is the written document, not the 30 to 60 minutes you spend in the courtroom talking about the written record.”

Gunn credits that time as a law clerk—three years spent reading 70-page briefs—with his education in legal writing.

 “I want you to visualize a desk with stacks of legal papers,” he says. “Stack after stack, and you get to choose which stack am I going to start on. If you know one stack is going to be more interesting than the others, you’re probably going to be tempted to start there, and that’s what happened to me. It became clear which law firms were skilled at their art, and I would invariably pick up that stack.”

So when he became an appellate lawyer, Gunn’s goal was to write the kind of briefs that got picked up first. The challenge, he’s learned, is coming up with the right form to fit the function. It’s different with each case.

“I don’t want to be showy. That’s not the point,” he says, noting that ChatGPT can write an impressive limerick about a statute (he’s asked) but that it’s not likely to capture the point of a case. But he has been known to reference a song lyric or classic work of literature if it’s memorable and fitting.

“I’d like to use Shakespeare more, but it’s so dangerous,” he says. “Shakespeare was such a master with shades of gray that, if you use Shakespeare carelessly with somebody who knows their Shakespeare, they can turn it around on you. I wouldn’t put Shakespeare in a brief just to make myself happy. I would do it only if there’s a line I know that absolutely fits the case that will maybe be memorable but hopefully help the judge process what’s going on.”

Gunn let himself indulge in an Aeneid allusion to the Trojan horse, even quoting the Latin Equo ne credite—“Trust not the horse”—to persuade the Texas Supreme Court to deny review in a lawsuit related to a business divorce among a dozen surgeons. Gunn argued in his brief that opponents had focused their petition on the two sexiest legal questions as a lure to sneak in the door before switching to the higher-dollar issues at stake.

Oftentimes, though, particularly when addressing oil and gas regulation, a simple graphic is more appropriate than a quote from Virgil.

In Regency Field Services v. Swift Energy Operating, involving an expanding plume of pollution 2 miles below the surface, he tried to come up with a “poem or a song or a Renaissance painting” to persuade the Texas Supreme Court to weigh in on underground geology, but in the end he settled on a simple graphic of a blob crossing a line. “What does it mean to say a plume has crossed the line? The only way to do this is with a picture,” he says. He won the appeal, and now another firm took it to trial and got a verdict, which is currently on appeal.

The right visual or analogy rarely comes instantly, Gunn says, but he knows when he’s found it. In an amicus brief for Horton v. The Kansas City Southern Railway Co., still pending before the Texas Supreme Court, Gunn and partner Russell Post alluded to the question of how trial lawyers draft the questions that go to juries in order to demonstrate that, if you keep slicing questions into narrower components, the whole process becomes endless and unworkable. But how to illustrate that?

The answer came to him on a quiet day in the office coming off the holidays. “After I read through the papers that all the other lawyers had filed, I thought, ‘There’s a lot of ink and it all comes down to one concept.’” His mind flashed to the cover art on The Dark Side of the Moon—a simple prism splitting a beam of light into an infinite number of colors. “You’re talking to a Pink Floyd fan, so that wonderful album is always lurking around in my subconscious, and this was the first time it had an opportunity to escape,” he says. “The prism explains it because it shows there’s no limit. The people asking for slicing have never explained when they are going to stop.”

Keltner says intros that spell out: “This is why this case is important; here’s why you should decide it our way” are Gunn trademarks, as are graphics that highlight a damning line from the opposition’s own documents, discovered through Gunn’s meticulous research of a case. And he doesn’t just quote the key email or contract. He takes a snapshot and embeds the graphic.

That level of detail and wordsmithing takes time—typically 80 hours for Gunn and collaborators to finish a brief.

“I want to write something like a nonlawyer would write it, with minimal jargon, maybe a little more informal, a little more colloquial, not out of control, enough to make it understandable to anyone who is not an expert in the area,” Gunn says. “Our judges are normally generalists. It’s the lawyer who is supposed to be the specialist in the subject matter of the case, so I will try to figure out what will make the judge’s job the easiest, the most interesting, the least tedious and the most efficient, to let him or her go home as early as possible.”