Taking a swing at appellate brief writing.

• Author: Wolf, Judge James R.
• Position: Appellate Practice

Baseball and the law have been connected since Judge Kenesaw Mountain Landis, U.S. district court judge for the Northern District of Illinois, was hired as the first baseball commissioner in 1920. (1) I decided to use the connection between these two subjects to discuss appellate briefs. This article includes some tips on how to hit a home run with an appellate brief.

Keep Your Eye on the Ball

Loss of focus can be disastrous in both baseball and brief writing. In baseball, playing good defense, moving runners along, and not walking batters are techniques to achieve the ultimate purpose: winning the game. Distractions such as hotdogging, concentration on personal statistics, and always going for the homer on offense or for the strike-out on defense may lead to additions in the loss column.

Maintaining one's focus on the desired result is also important in brief writing. You should specifically identify the outcome you are seeking, and you should not waste time and effort on items that do not advance your goal. Bryan Garner describes the purpose of brief writing as writing "the winning brief." (2) Everything in your brief should be designed to persuade the court to rule in favor of your client in a specific manner. As one writer has observed, "a brief that didn't win, however close to perfection it may have come, just wasn't an effective brief." (3)

The First District Court of Appeal has stated that the fundamental purpose of a brief and its appendices in appellate practice is to acquaint the reviewer with material facts, points of law involved, and arguments supporting the respective parties' positions. (4) The court has identified the fundamentals and techniques required to achieve your purpose. Playing sound, fundamental baseball --like laying down a sacrifice bunt or "hitting behind the runner"--helps achieve the goal of scoring more runs than the other side. Similarly, writing a sound, fundamental brief--including making concessions when necessary and sticking to relevant disputes --helps achieve the goal of winning your requested relief.

Be a Five-tool Player

In baseball, a five-tool player is one who excels at hitting for a high batting average, hitting for power, base-running, throwing, and fielding. Some of the game's greatest players, such as Willie Mays, Mickey Mantle, and Roberto Clemente, have been dubbed five-tool players. In brief writing, a five-tool player is the attorney who drafts excellent issues and excels at writing a persuasive statement of facts, writing an effective summary of the argument, developing an argument, and crafting a conclusion. The attorney who regularly does these well will end up in the brief writers' hall of fame.

Know Your Audience

Every true baseball fan is familiar with the Norman Rockwell image of three umpires looking at the sky during a rain delay. They want the rain to stop so they can yell, "Play ball!" In the legal field, the judge's role has been compared to that of an umpire. Chief Justice John Roberts, in the opening statement at his confirmation hearings, stated:

I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes and not to pitch or bat. (5)

Just as a catcher helps the umpire by framing the strike zone, brief writers need to help the legal umpires call balls and strikes objectively by understanding that judges 1) do not want to have to make your arguments for you or guess at what you want; 2) want the correct facts and law presented to them in a concise manner; and 3) want to understand the implications of the decision you are asking them to make. These are tips that will help you ensure the umpire within the courtroom makes the right call.

Know the Rules of the Game

"Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules." (6) Judges and umpires do not care whether the lawyer or ballplayer believes that a rule does not make any sense. They will enforce them as written. Hitting a game-winning grand slam in the bottom of the ninth will be futile if you are standing outside of the batter's box. You will be declared out; your team will lose; and you will suffer humiliation.

Failure to follow the rules related to brief writing may result in a similar outcome. Fla. R. App. P. 9.210 outlines the requirements for appellate briefs. Rule 9.210 has over 40 requirements concerning the content and formatting of briefs. Failure to follow these rules may result in the court striking the noncomplying brief. (7) Repeated violations may result in a referral to the Bar for appropriate action. (8) As one baseball writer suggested, "Every baseball feat seems all the more amazing because it is accomplished within the confines of an orderly universe." (9) Because of the volume of work faced by appellate judges, decision-making must also occur in an orderly universe. Adhering to the rules for brief writing helps to ensure that order is maintained.

Know the Playing Field

A team that does not know the playing field--including how balls carom after hitting the outfield walls, whether the infield is slanted toward the foul lines, or where fair territory begins--cannot expect to come out with a victory.

Much like the playing field in baseball, the playing field in an appellate court is the evidence and argument presented in the trial court and brought to the appellate court in the record on appeal. Matters not presented to the trial court are in foul territory and are not properly included in the record on appeal, because appellate review is confined to matters contained in the appellate record. (10) Even if matters were presented to the trial court, they are not in fair play if they were not included in the record on appeal. (11)

Walking the playing field prior to the game, gauging the hardness of the infield, checking for ruts in the...