Three simple ways to improve your briefs.

• Author: Cantero, Raoul G.
• Position: Appellate Practice

After practicing as an appellate lawyer for 14 years, in 2002, I was appointed to the Florida Supreme Court. For six years, I observed from the other side of the bench lawyers practicing the craft I loved. When I met with my former colleagues in the appellate bar at conferences and Bar conventions, I was often asked, "What would you do differently now that you're a judge and you've seen things from the other side?" There were few things I would do differently, but there were many I would try to do better. Observing others brief and argue cases also reinforced many ideas I had about how briefs should be written. This article attempts to articulate some of them.

But first, some caveats. First, this is not intended as a comprehensive explanation of brief writing. Rather, this article presents a few concrete tips for immediately improving appellate advocacy. Second, some of the ideas may not be unanimously accepted. I do not intend to provide a judicial consensus on appellate practice, only to offer my own ideas about what works. Third, I believe that adopting my suggestions will improve your appellate advocacy, but it may not win the case. Fortunately for both lawyers and their clients, the merits matter. Even the most well-written brief and convincing oral argument will not win the case if the merits are against you. Contrary to the opinion of many lawyers, the advocate's job is not to win; it is to place his or her client in the best possible position to win. After that, it is the judicial panel's job to correctly apply the law.

With those caveats in mind, I offer the following three ways to immediately improve your briefs. First, shorten the brief. Second, include an introduction. And third, divide the brief into subsections. These three steps may seem simplistic, but implemented correctly--which is the hard part--they can greatly enhance the force of the brief.

Shorten Your Briefs

Yes, your advocacy will improve if you write less. Lawyers find it hard to believe that shorter briefs have more impact than longer ones; and even when they believe it, they cannot bring themselves to shorten their writing. Lawyers are addicted to words. But when the lawyer views the appeal from the judge's perspective--as everyone should--the reason becomes clear. Lawyers preparing their case become myopic. They think only about their brief, about telling the court as much as possible about their case, about explaining just how wrong the trial judge was. But the judge reads the brief from a much different perspective. To the judge, this is just one case among 10 to 20 others that will be argued around the same time. Each case file contains at least three briefs (not counting multiple parties or amici on one side or the other). At the maximum page limit for each brief, that amounts to 115 pages per case, or somewhere between 1,150 and 2,300 pages of reading before oral argument. Yours may be the 15th case on the docket, and as the judge picks up the file and sees your brief, he or she will immediately go to the table of contents or the back page to determine how much reading awaits her. She will either see a 50-page brief, cringe, and take a coffee break; or she will see a 20-page brief and smile, knowing that someone out there understands. That brief writer just won several brownie points.

To suggest that briefs be shorter does not imply that they should be less forceful or persuasive. The paradox of brief writing is that shorter briefs persuade more, not less.

There are three basic ways to reduce the length of briefs. These are: 1) presenting only the relevant facts; 2) reducing the issues on appeal; and 3) developing a concise writing style. All are difficult, which is why short briefs are rare.

* Detail only the facts relevant to the issues on appeal--The statement of...