Vol. 10, No. 6, Pg. 36. Four Steps to Effective Appellate Brief Writing.

• Author: By the Hon. Jean H. Toal, Robert A. Muckenfuss and Shahin Vafai

South Carolina Lawyer

1999.

Vol. 10, No. 6, Pg. 36.

Four Steps to Effective Appellate Brief Writing

36Four Steps to Effective Appellate Brief WritingBy the Hon. Jean H. Toal, Robert A. Muckenfuss and Shahin VafaiAn article in the last issue-"Issue Preservation at Trial" (South Carolina Lawyer, March/April 1999)-discussed the four basic elements of preserving trial errors. By fulfilling these elements, the trial lawyer lays the groundwork for a potential appeal. If the case is appealed, the trial lawyer must change roles and become an appellate advocate. One of the most vital tasks in this role is writing an effective appellate brief.

Because most lawyers appealing cases to the state's appellate courts do not regularly engage in such work, the task of writing a brief may prove challenging for them. This article explores the four basic steps of effective brief writing. Carefully following each of these steps will significantly improve the quality and persuasiveness of the lawyer's brief and increase the likelihood of success on appeal.

Before exploring the specific steps of effective brief writing, it is important to reflect on the general goals the appellate advocate seeks to achieve. Like any other form of writing, the appellate brief is effective when characterized by logic, clarity and simplicity. It is ineffective when marked by disorganization, obfuscation and complexity.

The objective is to make the argument so clear, comprehensive and compelling that the appellate court will have no other option but to rule in one's favor. These goals can be achieved through four major steps: strategically identifying the most significant issues; concisely discussing the applicable law; thoroughly analyzing the law and the facts; and persuasively offering viable solutions.

STEP 1: Identifying Significant Issues

The first step in effective brief writing is identifying the few issues that are most likely to lead to a successful result on appeal. Loading the brief with an excessive number of issues lessens its persuasiveness. In contrast, focusing on a few key preserved issues allows the appellate court to more carefully consider the appellant's arguments.

The lawyer who discusses numerous issues is like an amateur enthusiast firing a machine gun, hoping to randomly hit some object. However, the advocate who homes in on a few issues is akin to the skilled marksman carefully aiming a rifle at select strategic targets. The latter approach is much more likely to produce the desired result. Therefore, it is wise to limit the number of issues discussed in the brief; typically, there is little reason to exceed four issues.

An even narrower focus is required when petitioning the Supreme Court to issue a writ of certiorari to review a decision of the Court of...