Make Your Writing More Appealing—Part 2, 0218 COBJ, Vol. 47, No. 2 Pg. 8

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47 Colo.Law. 8

Make Your Writing More Appealing—Part 2

Vol. 47, No. 2 [Page 8]

The Colorado Lawyer

February, 2018



This four-part article series summarizes the results of surveys sent to state and federal appellate court judges to evaluate their advocacy preferences. This part 2 discusses the types of errors commonly found in briefs so that attorneys can avoid them in their writing.

As discussed in part 1 of this series,[1] several years ago I began sending surveys to state and federal appellate court judges around the country to learn more about their attitudes regarding various aspects of appellate advocacy. My interest was both professional and personal: I have been litigating civil and criminal appeals in state and federal courts for over 20 years, love what I do, and am always striving to make myself better at it. I also act as a consultant for lawyers who don’t litigate appeals as often as I do and wanted to conduct research that would make my advice as helpful and informed as possible. While the survey results received from the judges confirmed some generally accepted wisdom, the results also taught some surprising lessons. This article focuses on how often appellate judges believe advocates make certain mistakes in briefs, dividing those results into civil, criminal, and family law cases. It begins with a brief description of the survey, followed by an explanation of how to read the charts in this article.

Survey Methodology

I sent surveys to all federal and state appellate judges within the federal First, Second, Third, Seventh, and Tenth Circuits. The courts surveyed comprise 39 appellate courts in 18 states. I received responses from 192 judges, a response rate of slightly under 43%. This is a relatively high response rate for a survey that was submitted “cold” (i.e., I didn’t prepare anyone ahead of time). The survey contained 86 questions divided into seven sections:

1. The Structural Elements of Briefs

2. Use of Authority and the Record

3. Writing Style and Advocacy

4. Typography of Briefs

5. Physical Characteristics of Appellate Work Product

6. Frequency of Certain Errors

7. Oral Argument.

This article presents the survey results for the “Frequency of Certain Errors” section. In this section, the judges were provided a list of common errors. Those errors ranged from substantive mistakes (e.g., misstating the record) to technical issues (e.g., improper punctuation). Judges were...

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