Appellate Advocacy: The Proper Use of "English"

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Appellate Advocacy: The Proper Use of “English”

by Roger D. Townsend

You probably think this article is about writing. Wrong. You should know me better than that. It’s about pool, specifically how to control the spin on the cue ball referred to as “English” (though the French probably call it “French”).

Unless you have the rare straight-in shot that will win the game, so that you have no need to play position for another shot, you’ll need to apply some “English” to your shot. This means that you strike the ball slightly off center to influence its trajectory. But you don’t need to apply much spin. The greatest player who ever lived, fifteen-time world champion Willie Mosconi, observed that 99% of all shots in pool can be made by using no more than a cue-tip’s width of “English.” Willie Mosconi, Willie Mosconi on Pocket Billiards 40 (1948); see generally Willie Mosconi, Winning Pocket Billiards 66 (1965).

Since we’re not standing together over a pool table, maybe it will be easier to describe what I mean if I analogize to writing a brief. Suppose the facts are that one vehicle ran a red light, striking another vehicle in an intersection and severely injuring one driver. If you have the dead-on shot that will win the case, then that’s probably all you would need to say. But suppose you represented the injured party. To be sure of winning the case, you would need to show the other driver was at fault. And to uphold your client’s large recovery, you’d want to make the injuries look as bad as possible. You could add “English” to the facts by a slight spin. In doing so, you might report that “a Hummer plowed through the intersection, striking a Volkswagen Beetle, and rendering the Beetle’s occupant, a teenage girl, a paraplegic.”

Of course, too much spin on the ball, more than a cue-tip’s worth, runs the risk of
a miscue. While a master pool player might be able to get away with that to pull off a massé trick shot, most players will fail miserably. Returning to my analogy, you would not want to assert paraplegia, if the only injury was whiplash. That’s simply too much spin and will result in a miscue. A miscue can give your opponent the chance to run the table and win the game.

As another example, suppose you represented the defendant in the above example.
Your cue-tip’s width of spin might be that “two vehicles collided in an intersection and one of the drivers was injured.” That’s accurate and spins it slightly to control where the ball will wind up. But too much spin would be something like “the defendant’s vehicle was damaged when it was struck in the front by the driver’s side door of a speeding vehicle; not surprisingly, the plaintiff driver was also injured.”

Another example could be a breach-of-contract case. Bob and Carol own a diner. Ted and Alice supply the tofu on a monthly basis. Because of a Teamsters’ meeting at the diner, Bob and Carol run out of tofu earlier than usual. They ask Ted and Alice for a special delivery and offer to double the usual price. Ted and Alice deliver, but Bob and Carol won’t pay the higher price. It’s lawsuit time.

By racing to the courthouse, Ted and Alice win the lag to get the first shot. But in
case they miss, they will want to leave Bob and Carol in a poor position. So, Ted and Alice use some “English” by asserting that they “worked on a weekend, canceling a trip to South Beach with their young children, five-year-old Paris and eight-year-old London, to fulfill the extraordinary demands of Bob and Carol. Based on the promise of a double price, they told their children that they would make it up to them next year by visiting Mickey Mouse in Florida.”

As you can see, that spin leaves Bob and Carol on the defensive. When they get to
the table, assuming there’s been no game-winner shot like summary judgment on a sworn account, Bob and Carol may need to execute a trick shot. They may be tempted to use a massé shot, which puts extreme spin on the ball by elevating the cue dramatically. When it works, it’s a show-stopper; however, the massé shot requires tremendous expertise and often a special cue. The risk of a miscue, or even of damaging the cloth of the table, is very high.

Bob and Carol decide to go for it. They assert that the tofu supplied by Ted and
Alice was defective and made the Teamsters sick. In fact, the tofu was so bad that the Teamsters have canceled their monthly meeting at Bob and Carol’s diner and are now frequenting Maurice and Evan’s bistro. Thus, Bob and Carol file a counterclaim for lost profits against Ted and Alice. As long as some Teamsters will testify for Bob and Carol, perhaps with medical and accounting records to document the allegation, the massé shot may work. Otherwise, it may be too much spin.

Less risky might be a cue-tip’s width of “English.” For instance, they could spin
the ball by asserting that there never was a promise of twice the price, only the suggestion that they would consider increasing their future demand by adding tofu to their daily lunch menu. As a result, there was no contract for a double price. This relegates Ted and Alice to a claim in quantum meruit for the extra tofu delivered. Because it leaves Ted and Alice in a tough position, that is probably a safer shot for Bob and Carol.

To be a top player, however, you also must master “reverse English.” This is a
special spin that causes the cue ball to rebound in the opposite direction, depending on how hard you strike it. It’s a very necessary skill for top-flight position play. For those of you who are not pool players but merely appellate lawyers, think about a case in which an appellate court has just reversed a huge damages award, but affirmed an apparently small part of the case involving indemnity — though that’s the only part of the case that the appellee really cares about. Applying “reverse English,” the appellee might petition first to the supreme court, so that the focus would be on the damages issue, rather than the one the appellee is most worried about. The other side, as cross-petitioner, may have a hard time refocusing the court, since the “reverse English” has taken the case in an unexpected direction and made the second-player’s subsequent shot look like an afterthought or even just safety play.

I’m sure you’re starting to get the picture. It takes a lot of practice to perfect the proper use of “English.” Aside from aim, force (known in the trade as “touch”) also is important. Don’t overdo it; in fact, don’t use it unless you need it. But when spin is necessary, don’t shy away from using a little.

That’s all my advice for today. I’ll see you at Slick Willie’s later tonight; be sure
to bring your wallet — I play only for cash.