73 The Alabama Lawyer 344 (2012). YOUR APPELLATE BRIEF: An Obstacle Course for the Court or A Clear Pathway to Your Conclusion.

• Author: By Joi T. Montiel

Alabama Bar Journal

2012.

73 The Alabama Lawyer 344 (2012).

YOUR APPELLATE BRIEF: An Obstacle Course for the Court or A Clear Pathway to Your Conclusion

YOUR APPELLATE BRIEF: An Obstacle Course for the Court or A Clear Pathway to Your ConclusionBy Joi T. MontielThe secret ambition of every brief should be to spare the judge the necessity of engaging in any work, mental or physical"(fn1)

Given the number and length of briefs filed in the Alabama Supreme Court every year, an Alabama Supreme Court Justice is tasked with the equivalent of reading The Bible and War and Peace 20 times annually.(fn2) The justice not only must read all those pages, but he or she will have to analyze them and consider the merits of the arguments. Moreover, the justice will have to make decisions about what he or she reads, and then explain his or her decision in writing. And, of course, we want the justice to do it quickly, please.

What can attorneys do to help the justices trudge through briefs and make decisions more easily? In short, the best brief will go a long way to do the judges work for him or her. If you have written a truly effective brief the court's opinion will look much like your brief. Your brief should lay the groundwork for the judge, or at least make his or her job as easy as possible.

To lay this foundation, you should first consider the role of Alabama Supreme Court justices. They are busy. They may be "impatient and unforgiving" but they want to reach the right result for the right reason.(fn3) As lawyers, and particularly as judges, they are skeptical. They know that your job is to persuade them to decide in your clients favor. They are wary of that when they read your brief

You should also consider that the judges have staff who also read your briefs and discuss them with the judges. The staff may be people who have worked for the judges for years, but just as likely, they may be recent law graduates, probably from the top tier of their law school classes. They were probably on law review, they know the Bluebook rules, they know how to properly use a semicolon and they are excellent researchers.

Your brief should provide these skep-tics-the busy judges, staff attorneys and law clerks-with a clear path to the conclusion you want them to reach. When these decision-makers read, they question what they are reading, and they are troubled if you fail to provide the answers to their questions. They are annoyed and distracted by poor grammar and citation errors and particularly by any misrepresentation of law or fact-whether it is inadvertent or intentional. Instead of creating these obstacles, you should strive to lead the judges to your conclusion on a clear, unobstructed pathway. Set forth below is a list of obstacles that judges say(fn4) they often encounter when reading appellate briefs, as well as some advice about how to remove those obstacles from your briefs.

One federal appellate judge has said that the best way to tell the court that you have a "rotten case" is to write a "fat brief.."(fn5) He says: "When judges see a lot of words they immediately think: LOSER, LOSER. You might as well write it in big bold letters on the cover of your brief."(fn6) Another judge has said that "[t]he more paper you throw at us, the meaner we get, the more irritated and hostile we feel about verbosity, peripheral arguments and long footnotes."(fn7)

In writing an appellate brief, less is more. Maybe your client will be impressed that you wrote a really long brief, but it does not impress the court. Irritating the judge does not serve your client well.

In contrast to a "fat" brief that irritates, a brief that is concise and to the point will be read with full attention.(fn8) Of course, it takes more time and effort to write a short, concise, tightly organized, well-focused brief than it does to write a long, rambling, disorganized brief full of long block quotes,(fn9) but it is time well spent for your client and for your own reputation. Judges "associate the brevity of the brief with the quality of the lawyer."(fn10) Tightly organized, concise briefs are written by good lawyers. Poor lawyers, on the other hand, write lengthy, verbose briefs.(fn11)

One way to shorten your brief is to include only winning arguments. A winning argument is a simple one. In contrast, "convoluted arguments are sleeping pills on paper."(fn12) A good brief should include persuasive arguments and only persuasive arguments. Forcing a judge to trudge through unpersuasive arguments causes you to lose credibility and the judge to lose interest. A sure-fire way to lose is to "bury your winning argument among nine or ten losers."(fn13) When surrounded by less persuasive arguments, strong arguments lose their edge and persuasive force.

An issue that was not properly preserved for appellate review is not a winning issue. Furthermore, when a lawyer raises an issue that was not properly preserved, he loses credibility with the judge. The judge is then less likely to trust that lawyer's analysis when the judge considers issues that are properly reviewable on appeal. Consider the preservation question when deciding which issues to raise. Arguments on issues that were not preserved are a waste of space in your brief and a waste of the court's time.

In addition to eliminating losing arguments, trim back your statement of the case and statement of the facts. The court needs to know only the procedural background and facts that are relevant to the issues on appeal. Facts that are not legally significant-in your view or your opponent's view(fn14)-need not be included. Revise the statement of the case and statement of the facts at late stages of drafting the argument to shorten your brief.

You should also cut out long paragraphs, long sentences and long words.(fn15) The judges are busy. They "simply don't have time to ferret out one bright idea buried in too long a sentence."(fn16) Your brief should be clear, concise and direct; simplicity is a key to each of those-from the choice of issues to the choice of individual words.

When choosing the issues to appeal, perhaps you should abandon those...