STRUCTURING APPELLATE BRIEFS.

AuthorHudson, Thomas L.

Much has been written about legal writing, and some of it is even helpful. (1) But even the good stuff often focuses on style or other similar aspects of legal writing such as "avoid legalese." One, of course, must master all of this, but another critical aspect of what differentiates good legal writing from bad is organization, otherwise known as structure. Indeed, even if each sentence reads well, and even if the document ultimately makes the necessary points in a civil and credible manner without unnecessary duplication, when the structure is off, it is like looking at a sculpture with the limbs unintentionally out of place--jarring, to say the least.

In appellate briefs, perhaps due to their length, structure becomes particularly important. A well-structured brief will stand out, and a poorly organized brief may cause the reader to gloss through it or put it down. (2) But what makes a brief well organized? At the highest level, of course, the governing rules often require a particular structure. Most appellate courts require a jurisdictional statement, issue statement, statement of the case, statement of the facts, argument, and conclusion. (3) But within each of these sections, there is another layer of shape and structure to which the best appellate lawyers pay attention. In fact, if you pay attention to this structure, you will see that many of the best appellate briefs often implement the same high-level structure within the required overarching organizational elements.

With some planning and editing, you too can do this (if you are not already doing so). Before getting to the details, however, a few caveats. First, the scope of this article is primarily limited to structure, so it will not touch on many other important aspects of brief writing such as issue selection, themes, and framing. (4) Second, the examples below use terms like "Appellant" and "Appellee" because it makes the examples easier to follow. In your own briefs, you should avoid those labels. (5) Third, and for similar reasons, nothing below should be taken as advice about drafting the table of contents. With that, let's get going.

  1. THE INTRODUCTION

    Absent some important overriding concern, the opening, answering, and reply briefs should begin with an introduction, overview, or summary. In the opening and answering briefs (reply briefs are discussed below), the introduction provides the first opportunity to help the reader begin to understand--big picture--what the case is about, why it is interesting, and why you should win. unless you are litigating a highly publicized case like Bush v. Gore, (6) a good introduction should assume no prior knowledge about the case. In no more than a page or two, it should begin framing the case and provide a high-level overview, with details to come later.

    When drafting the introduction, think about what you would tell a stranger about your case if you had thirty seconds to do so. What does the 10,000-foot view of the case look like? What is the first thing you want the reader to know about your case? Often, a "This is a case about" phrase works well.

    For example, in one of the now infamous marriage equality cases, the appellees (represented by Ted Olson, David Boies, and other very talented lawyers) (7) began their brief with such a phrase: "This case is about marriage, 'the most important relation in life,' and equality, the most essential principle of the American dream, from the Declaration of Independence, to the Gettysburg Address, to the Fourteenth Amendment." (8)

    Of course, not all cases lend themselves to such lofty themes. Moreover, you do not want to overdo it. So, if it's an abuse of discretion issue about case management, do not claim it's about the client's fundamental right to due process. But with that in mind, recognize that cases often boil down to a high-level issue that can be framed in a moderately interesting and persuasive manner. The goal is to think hard about the entry point of the case and start there.

    In terms of process, many drafters find it helpful to start by jotting down some initial thoughts about what the introduction should include, and then write the rest of the brief (before finishing the introduction). They then return to the introduction after the rest of the brief is fairly polished.

    Although this technique may seem counterintuitive, it works. To draft the best introduction, you must have a deep and abstract understanding of the case's battleground points and themes. You will gain this deep perspective only after going through the rest of the drafting process. Thus, although you may initially draft the introduction whenever you like, revisit and redraft the introduction after drafting the rest of the brief. At that point, after understanding the brief as a whole, you will be in the best position to write the best introduction possible.

  2. THE PROCEDURAL AND FACTUAL BACKGROUND SECTIONS (AKA STATEMENT OF THE CASE AND FACTS)

    Both the opening and answering briefs should also include sections that explain the case's relevant procedural history and background facts. Subject to the governing rules, this information often may be combined. But sometimes it is better to start with the statement of the case if, for example, the procedural posture plays an important role on appeal. (9)

    A few things to keep in mind: First, tell your story as persuasively as possible. After reading the fact section, the reader should want you to win. Do not, however, omit any bad facts to achieve this result. (10) Many others have made this point, so no need to dwell on it. Just make sure the judges and law clerks hear everything bad about your case from you first. Your credibility depends on it. (11)

    Second, do not feel the need to include every detail in either the procedural history or fact section. For starters, exclude irrelevant detail. For example, if it does not matter that X Corp. is a "Delaware Corporation," don't waste the reader's time with that detail. The same holds true with dates that do not matter.

    Moreover, you also need not include every relevant detail in these sections. Unfortunately, some writing instructors teach that every detail used in the argument section must have first appeared in the facts/procedural history sections. (12) This is bad advice. In the real world, brief readers typically read the background sections once and they will not remember every detail. They will then read the argument sections multiple times (often in parallel with the corresponding argument sections from the other briefs). In these sections, the precise details often matter, and it is much easier for readers to process details in the argument section. Within the argument section, the details will now be in context and the reader should already understand the big picture. So, although the statement of facts must include the relevant background...

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