Allow me to introduce Oliver Ward.

Oliver is one of the appellate lawyers at our firm. He’s sarcastic, a great colleague, and comes with a British accent, which means Americans tend to assume he knows what he’s talking about. (It also means he spends a lot of time removing rogue “u”s from his briefs and reluctantly Americanizing his spelling.) His most recent claim to fame is winning a legal writing competition in a workshop run by Bryan Garner, making him the proud owner of two books signed by the great man himself.

Please say hello to the firm’s introvert at our next networking function. He puts up with social events even though he would rather be reading a book or watching football  soccer.

I asked Oliver to write a guest post. In keeping with the theme, I tried to include audio of Vitamin C’s Graduation song but I’m not savvy enough (and one of you who understands copyright law would yell at me). So without further ado:

On Micromorts and Appellate Law

It’s mid-May, which means celebrities and notables from Tom Brady to Harrison Ford have been roving the country delivering inspirational commencement speeches for the benefit of bleary-eyed graduates. They’ve implored their hungover audience to do good, to follow their passions, to seek adventure and take risks. And of course, within a few weeks, those same students will enter the world of work and forget everything Indiana Jones told them. 

Now, it’s unlikely I’ll be asked by my alma mater to impart my wisdom to the next generation anytime soon. But the issue of risk, and how we should manage it in our personal and professional lives, is something I continue to reflect on, some years after my own graduation. 

Statisticians have a term for a one-in-a-million chance of sudden death: a “micromort.” The concept was developed to help people think more clearly about risk by expressing different dangers in a single comparable unit. Smoking a cigarette? That’s one micromort. Running a marathon? Seven micromorts—which sounds alarming until you realize that just getting out of bed in the morning in middle age is six micromorts. Hey, it’s a scary world out there: eating 1000 bananas is equivalent to spending an hour down a coal mine (For the morbidly curious among you, a more comprehensive list can be found here.) 

I frequently find myself referring back to the concept of micromorts when evaluating my personal life choices. It’s why you won’t catch me skydiving anytime soon. (Well, that, and my crippling fear of heights.) 

But in my professional life, too, I’ve begun to think of appellate advocacy in similar terms. Because there are many ways your credibility can die. A single typo, much like a single banana, won’t kill you. But a brief that’s littered with them can do real damage to your argument. 

Appellate persuasion is cumulative, and credibility erodes incrementally. Every sentence, citation, and quotation either increases confidence, preserves it, or slightly diminishes it. Most of these effects are too small to notice in isolation, but together, they can become decisive. 

Of course, some errors are what we’d call “acute” micromorts—catastrophic credibility events like materially misrepresenting the record, accidentally conceding something fundamental at oral argument, or (god forbid) referencing a hallucinated citation. But most briefs don’t die that way. They die slowly—from clutter, unnecessary complexity, and bad organization. From the accumulation of tiny frictions that make a judge (and their clerk) trust the advocate slightly less with every page. 

 One of the great commencement speeches, later published as This Is Water, was David Foster Wallace’s address to the 2005 graduating class of Kenyon College. His speech began with one of the “didactic little parable-ish stories” that have become mandatory for the genre: 

There are these two young fish swimming along and they happen to meet an older fish swimming the other way, who nods at them and says “Morning, boys. How’s the water?” And the two young fish swim on for a bit, and then eventually one of them looks over at the other and goes “What the hell is water?”   

His point was simple: the most important realities are the ones so ambient and so constant that educated, capable people stop perceiving them entirely. The fish doesn’t notice water not because it’s stupid but because it’s immersed. Familiarity produces blindness. 

As appellate lawyers, we get to swim in the waters of our own briefs for weeks on end. That can be a blessing, but it has downsides too. Even experienced lawyers stop seeing their own ambiguities. They stop noticing the extra word, the unsupported assertion, the logical jump that only exists in their own head because they already know what they meant to say. 

So, how to stay alive? Well, for starters, try not to ride a motorcycle to court (10 micromorts for every 60 miles). And when it comes to your brief, get a second pair of eyes to read your work. Seek honest feedback from your colleagues. Develop checklists that catch what familiarity hides and force you to see your own brief the way a busy law clerk and a skeptical judge will. 

Small, avoidable errors matter—not because any one of them is fatal, but because we have to assume that judges are constantly, unconsciously updating their confidence in the advocate before them. 

In other words, the best appellate lawyers don’t merely write well. They systematically eliminate micromorts. Perhaps not the inspirational message that graduating law students will be expecting to hear, but maybe one that’ll stick.

Oliver can be heckled at oliverward@yatesappeals.com. Whether that adds a micromort to his tally or yours is left as an exercise for the reader.