Elements of a Successful Appellate Brief - June 2008 - Young Lawyers Division

• Publication year: 2008
• Pages: 69
• Citation: Vol. 37 No. 6 Pg. 69

37 Colo.Law. 69 Colorado Lawyer 2008.

2008, June, Pg. 69. Elements of a Successful Appellate Brief - June 2008 - Young Lawyers Division

The Colorado Lawyer
June 2008
Vol. 37, No. 6 [Page 69]

Departments
Young Lawyers Division
Elements of a Successful Appellate Brief
by Aaron N. Einhorn, Theresa L. Sidebotham

"Young" lawyers are 38 years old or younger or have been licensed to practice for less than four years The mission of the Colorado Bar Association Young Lawyers Division is to be a liaison to young lawyers, to provide public service information and assistance, and to provide professional development opportunities for young lawyers practicing in Colorado.

Department Editor

Christopher D. Bryan, Garfield & Hecht PC - (970) 925-1936, cbryan@garfieldhecht.com

About the Authors

Aaron N. Einhorn graduated from the University of Denver (DU) Sturm College of Law in 2007. He has clerked for Hon David M. Furman on the Colorado Court of Appeals since August 2007 - (303) 867-6198 aaron.einhorn@judicial.state.co.us.

Theresa L. Sidebotham graduated from the DU Sturm College of Law in 2005. She has clerked on the Colorado Court of Appeals since August 2005; until August 2007 for Hon. Alan M. Loeb; and since then for Hon. David M. Furman - (303) 837-3728, theresa.sidebotham@judicial.state.co.us.

As law clerks for the Colorado Court of Appeals, we read briefs each week and analyze them with our judge. In addition, our job regularly involves appellate writing that conforms to the standards discussed in this article. These experiences provide us insight into writing persuasive and effective briefs that can strengthen your appellate advocacy. This article will discuss the elements of successful appellate briefs.

Process of an Appellate Opinion

Writing an effective appellate brief requires a sound understanding of how the Court of Appeals creates an appellate opinion. The process begins with litigants filing appeals with the Clerk's Office, which processes and distributes them to a three-judge panel.(fn1) The senior judge of each panel then randomly assigns cases among the judges to author.

The authoring judge, with the assistance of his or her staff, drafts a memorandum proposing a disposition of the case. The panel uses that draft and the briefs to prepare for oral arguments, if they are scheduled. After oral arguments and discussion with the panel, the authoring judge writes the final majority opinion, unless his or her opinion becomes the dissent, in which case another judge on the panel authors the majority opinion.

By the end of this process, an attorney's brief will have undergone significant scrutiny, not only from the authoring judge, but also from the entire panel of judges, as well as law clerks or staff attorneys. A well-crafted brief will have a much better chance of withstanding this scrutiny.

The Attorney's Goal on Appeal

To write an effective appellate brief, attorneys must understand the goal of an appeal. The goal generally is to convince a three-judge panel that it should affirm or reverse a specific trial court or administrative judgment, order, or ruling. Keep in mind the following three key points to help achieve this goal.

First, the Court of Appeals is a decisional court. Judges affirm or reverse based on existing law if possible, rather than creating new precedent. Attorneys should tailor briefs to this preference. Also, an intermediate appellate court does not find facts and generally does not set policy. Thus attorneys usually should direct arguments involving the credibility of witnesses or fact-finding to the trial court, and usually should direct arguments addressing...