Effective Appellate Advocacy
| Publication year | 1978 |
| Pages | 1548 |
1978, September, Pg. 1548. Effective Appellate Advocacy
Justice William H. Erickson, Denver, is Associate Justice of the Colorado Supreme Court.
Effective appellate advocacy requires both communicative and persuasive skills. Factual and legal issues must be presented to the appellate court in a coherent and concise manner to enable the court to acquire a full understanding of the merits of the appeal. Once the advocate has made the court cognizant of the factual background and the legal questions involved. he must attempt to persuade the court, through the exercise of logic, reason, and legal precedent, that the case should be decided favorably to his client. The only vehicles through which the advocate can accomplish this two-fold task are written briefs and oral argument.(fn1) This article offers some principles and guidelines for consideration by counsel.
The written briefs submitted by counsel prior to oral argument represent the court's introduction to and the issues in a particular case. Impressions left by a judge's first reading of the briefs will often have a lasting effect. The importance of a thorough, well-organized, and concise brief cannot, therefore, be overemphasized. Although a poor brief may be bolstered by an outstanding oral argument, counsel who rest their client's fortunes on such a gamble do themselves, their client, and the appellate court a real disservice. Not only do the participants in the case suffer from the submission of inadequate briefs, but such briefs consume the court's time and frequently delay the final appellate product---the opinion of the court.
The contents of an appellate brief are enumerated in the American Bar Association Standards Relating to Appellate Courts§ 3.31 (1977):
Mere awareness of a brief's components however, does not enable the appellate advocate to prepare good briefs. Counsel must also understand the appellate process and the responsibility inherent in the role of the appellate advocateA brief should contain a statement of the proceedings below, the questions presented, the relevant facts, the party's contentions and supporting authorities, and reference to or inclusion of such portions of the record as the party believes may assist the court in understanding the issues involved.
Counsel should approach the task of preparing an appellate brief with the realization that the reviewing court will
never be as familiar with the facts of a case as the attorneys who participated in the trial. The appellate advocate, therefore, bears the burden of familiarizing the court with all relevant facts in the record. Briefs should contain a coherent, concise, and accurate statement of the relevant facts, with proper folio references.
A chronological statement of the facts generally provides the advocate with the best method to present the facts logically to the court. Other methods, however, may be more appropriate in a particular case. Judge Edward D. Re has identified three additional methods of presenting the facts to the appellate court: key fact, disputed and undisputed facts, and topical subdivision.(fn2)
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