Views from the Bench
| Publication year | 1997 |
| Pages | 34 |
Writing a Winning Appellate Brief
Christine M. Durham Justice
These remarks are adpated from a presentation at the July, 1997 annual meeting of the Utah State Bar, sponsored by the Section on Appellate Practice.
I sometimes describe appellate judges as "professional students" and appellate advocates as their "tutors" to emphasize | the responsibility of the advocate to educate the judge, to lead the judge through the specifics of the case in a purposeful way. In this analogy, judges make ideal learners - they require information and understanding in order to perform their decision-making function. They are highly motivated, alert and (mostly) interested. It should be a difficult task for the average brief writer to discourage or confuse such an audience. Experience suggests that it is not. The following quiz reveals my personal hierarchy of values for the preparation of useful, effective appellate briefs.
What do appellate judges actually do with the briefs, anyway?
Appellate judges are expected to master the necessary facts and pertinent law of hundreds of complex cases every year. Their first tool in the process is the appellate brief. From the briefs (or law clerk summaries of them) come the judge's first perception of the nature of the problem, the options available for its solution, the status of the law, and the equities that will influence outcome.
Appellate judges read literally thousands of briefs, and often do so "on the road" (e.g., on planes, trains, automobiles, and exercise bikes; in bed; at meetings; and [sometimes] in their offices). With this in mind, it is important for the brief writer to include necessary textual material in the brief itself (or an appendix). The lower court record in a case is often not reviewed until after oral argument, and sometimes only by the judge actually preparing the opinion. So if you need your decision-makers to be familiar with critical language in a contract or other document, extract that language in a convenient place in the brief - in the text if it is not too long, or in a well-referenced appendix. Never forget that appellate judges regularly face mountains of briefs -they want to learn what they need to know quickly and efficiently. Unless you highlight critical portions in your brief, they may be overlooked or not understood.
Understand as much as you can about the mechanics of the court's process. If the court for which you are preparing your brief, for example, regularly uses bench memoranda prepared by staff attorneys, write for your primary audience. Your brief should be understood by all those who read it. Well-written briefs will be used to organize the issues for consideration in oral argument and conference, and relied on in the drafting of opinions.
What should you write FIRST?
Approach brief writing strategically. Start by writing the conclusion and prayer for relief. Beginning the writing process by spelling out the result you want will keep you focused on the goal of your writing. It will also ensure that you have thought your theory of the case through to logical conclusions, and anticipated procedural or other obstacles to the outcome you...
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