§ 3.4 Getting Specific

• Jurisdiction: United States

§ 3.4 GETTING SPECIFIC

§ 3.4-1 Briefing in the Oregon Court of Appeals

§ 3.4-1(a) Write to the Standard of Review

Each part of your brief should be written with the standard of review in mind. If you are the appellant, remember that your goal in the Oregon Court of Appeals, with rare exceptions, is to convince the court that legal error occurred below. "Jury arguments" will not carry the day. Instead, the applicable standard of review will drive the court's analysis. Whether you are the appellant or the respondent, your grasp of that standard should be reflected in your questions presented, summary of argument, assignments of error (or responses to them), headings, and argument.

§ 3.4-1(b) Persuasive, Accurate Questions Presented

The "questions presented" section is your first opportunity to present the court with the substance of your argument. Your questions presented should be persuasive without distorting or hiding facts. Do not assume—even if you are the respondent—that the reader already knows either the pertinent facts or the identity of the actors.

Avoid writing a question that begins with "whether." Use complete sentences instead, as those generally will be easier for the court to follow, and feel free to use more than one sentence. Do not use all uppercase letters; they are too hard to read.

Present each legal issue fairly, but in a way that suggests the answer that the court should reach. Here is an example of a multisentence question that identifies the pertinent legal principle, identifies the pertinent facts, and is fair yet persuasive:

"The Fourth Amendment authorizes a warrantless automobile seizure if police officers reasonably believe that the vehicle contains a live explosive device. Here, police officers testified that defendant's car—even after defendant turned it off—was 'ticking loudly' and emitting black smoke. Did those observations entitle the officers to seize the car without a warrant?"

Feel free to present multiple questions with respect to a single assignment of error, or to present a question that has subparts. The key consideration, of course, is whether doing so will help the court to understand the issues before it. If you are the respondent, do not feel obliged to accept the appellant's questions presented; you are free to rewrite or restructure them.

§ 3.4-1(c) Concise, Persuasive Summary of Argument

Your summary of argument should use as few words as possible to cover your key arguments, but should be long enough to persuade. A succinct summary—one that is just a page or two long—generally is ideal. Exceptional cases may warrant a longer summary.

If space permits, lead with a general statement that puts the whole argument in perspective. In a perfect world, your summary will identify the crucial facts and legal principles that make your position compelling and will also give the court a reason to want to rule for your client. If ruling for your client is absolutely required by statutory text or existing case law, make that clear. If you can explain in a sentence or two how ruling against your client will produce an illogical outcome, create drastic repercussions in other cases, or confuse the law, do so. This may be the last thing the judges review before oral argument, so make your case to the extent that space permits.

Similarly, if a seemingly powerful argument on the other side will intrigue the court, address it succinctly in your summary. It is better to inform the court up front that you have a response to that argument than to leave the judges wondering whether your brief will address it.

If presenting or responding to multiple assignments of error, consider using subheadings for easy reference.

Unless a particular appellate decision is absolutely dispositive, omit case citations. There is also no need to include record citations.

PRACTICE TIP: Consider using a summary of argument in appellate motions or petitions for reconsideration, even though court rules do not require them.

§ 3.4-1(d) Concise, Engaging Summary of Facts

ORAP 5.40(9) requires a summary of the facts that are "material to determination of the appeal." Your summary of facts should tell a concise story. The court will appreciate a summary that includes only those facts that pertain to the questions presented on appeal. At the same time, you need to provide enough context to enable the court to assess the correctness of the rulings at issue and whether those rulings affected the outcome. Particularly in complex cases, consider providing a high-level overview of the facts—essentially, telling the big-picture story—to give the reader background against which to place all of the details that follow.

Do not assume that presenting the facts in the same order that they were presented below is helpful to the court. Present them in the order that makes logical sense and that best helps the court to understand the case and the issue on appeal. Provide citations to the record.

Present the facts in a way that is appropriate, given the standards of review that apply to your assignments of error. For example, if you are challenging the trial court's denial of your motion for a directed verdict, keep in mind that the appellate court will review the evidence in the light most favorable to the nonmoving party, that is, your opponent. Peterson v. McCavic, 249 Or App 343, 350, 277 P3d 572, rev den, 352 Or 564 (2012). Consequently, if you describe the facts in the light most favorable to your client, the court is likely to view your summary of the facts as unhelpful.

Although you should attend to the standard of review, and although ORAP 5.40(9) requires your fact summary to be "without argument," your summary nonetheless provides an opportunity to alert the court to facts that make your legal position sympathetic. If a fact is particularly helpful to you, do not bury it inside a long paragraph. Do what you can to highlight it, whether that means placing it prominently within a short paragraph, providing a subheading...