Whittling: drafting concise and effective appellate briefs.

AuthorKeller, Brian K.

Every appellate attorney's nightmare is realizing too late that inartful language in a brief fatally distracts from the core of the argument, sending one judge scurrying down dead-end rabbit holes or playing to another's jurisprudential eccentricities. Applying the simple three-step approach outlined below can help you avoid that experience, but be warned: Although the tools for avoiding such mistakes are simple, they often require years of practice and effort to apply with skill. Stealing a few tricks from military discipline can make this process easier.


    Over the past eight years, I have become responsible for the appellate output of ten appellate litigators. I have trained and mooted some fifty attorneys to write and argue effectively, including shaping and editing over a thousand substantive briefs and extraordinary writs filed in the two-tier military appellate court system and in the Supreme Court. Our attorneys--military officers and judge advocates in the Navy and Marine Corps--arrive at my doorstep with some trial but no appellate experience, and serve only two-to-three-year terms as appellate litigators. My goal is to craft our attorneys into effective, hard-charging appellate advocates within six to twelve months of their arrival, so that I wrest two productive years from each attorney.

    The training curve is steep, the hurdles facing us huge: Each counsel's caseload on any given day is upwards of ten appellate cases. There is no dedicated paralegal support staff to cite-check, Shepardize, or perfect formatting. Three years is a short time in which to learn and excel at any area of law. And appellate law, one of the broadest and most complex areas of the law, poses a particular challenge for eager young attorneys fresh from law school.

    Competence as an appellate advocate requires the most thorough research skills, quick but comprehensive understanding of new concepts and legal tests, and an ability to encapsulate an entire argument in only a few short sentences. This conceptual ability to draw useful analogies and comparisons bridging disparate doctrines and lines of cases is particularly necessary in appellate law. Appellate lawyers think laterally, analogize, bridge gaps in understanding. (1)

    Despite these hurdles, by employing the system I describe below, within six to twelve months from setting their bags down in our office spaces, most if not all my attorneys have become competent appellate lawyers, able to verbally distill the development of precedent and circuit splits into terse, effective sentences. More impressively, when they leave after three years for new assignments, a full half--if not more--of my attorneys could aggressively and responsively argue in the highest court of every state, a federal court of appeals, or the United States Supreme Court, and craft briefs to match.

    How is this possible? It's simple: I use the same commonsense, no-nonsense approach the best military units use to train combat and support troops in new skills. Marines call these "muscle memory" classes. Others call the technique "monkey see-monkey do." But to help these young attorneys reach the broad and deep understanding required for appellate briefing in less than a year, there is no other way: We engage in a rigorous course of on-the-job learning that is well suited to the men and women of action who comprise the military. It is learning by doing. In combination with the skills the best military officers bring to the practice and to my office--brashness, boldness, initiative, delegation, and trust in low-level leadership--this technique produces competent appellate practitioners quickly. And given that hard-working attorneys everywhere share or learn these traits, this technique can work in any appellate practice.

    For the fundamentals of good appellate writing are neither costly nor complex. It is no cliche, but it is entirely accurate, to say that good legal writing comes from within. The predicates for effective appellate writing--the skills that grease the skids--are reading lots and lots of good writing, including what good appellate writing you can find, and then practicing appellate writing. As Justice Brandeis is supposed to have said, "there is no such thing as good legal writing, only good legal rewriting." (2) That is, writing is hard work.

    Nothing about my philosophy or the techniques that I describe is novel. Too often theorists of appellate practice prescribe exhaustive circuit-, court-, or author-specific peculiarities and preferences. I reject that approach. Instead, I outline the stripped-down essentials: Flow to coach young appellate attorneys to excel in writing appellate briefs and litigating their own appellate cases within one year of their first day on the job. And I do so by revealing the secrets of why the appellate litigators of the Marine Corps and Navy learn appellate litigation so quickly, and why they favorably compare to--and could successfully compete with--far more seasoned appellate litigators in any court. (3)


    1. Form: Invisible When Correct, Ignored at Peril

      In the Justice Department, legions of cite-checkers and copy editors assist action attorneys with the administrative side of brief-writing. There, and in larger firms, the task of ensuring that appellate briefs are letter perfect and look professional is more easily achieved. Here in my office, and also for solo practitioners and lawyers in smaller practices, this task is often left to the attorneys themselves. Ensuring that a brief is in proper form is among the easiest tasks to complete, yet it is also among the easiest to overlook. But make no mistake: Putting briefs in proper form is critical to a successful appellate practice.

      1. Use the White-Glove Test

        Marine Corps barracks inspections use the famous white-glove test--any dust or dirt that appears on the drill instructor's perfectly white glove spells automatic failure. You should apply the same test when copy-editing your briefs. Judges, law clerks, and supervising attorneys, the hard-nosed and jaded daily readers of hundreds of pages of densely written, citation-laden legalese, have a common refrain: Mistakes stand out like flashing neon signs. Page-numbering errors, misspellings, font irregularities, and trendy, unconventional, or simply incorrect grammar interrupt the reading experience. Instead, ensure that the final product is copy-edited to perfection.

      2. Avoid Distracting Formatting and Creative Writing

        An expert in rhetoric and composition once warned me that the practice of law kills your writing. Granted, the Chief Justice of the United States once wrote a compelling film-noir introduction to a dissent. (4) And I think that even legal-writing experts would agree that the law builds logic and argument skills. But the expert was right to suggest that brief-writing is not creative writing: Its goal is instead to excite curiosity about unknown or seemingly irrelevant precedent. Nor should the copy-editing be avant garde: It should not generate questions about word choice, cutting-edge fonts, new page-numbering systems, run-on paragraphs extending over multiple pages, or the decision to use left or full justification for the body of the text. Likewise, unusual Latin or foreign phrases that require dictionary pit stops, and over-ebullient use of "But" and "And" at the beginnings of sentences, merely distract from your goal of focusing on the argument.

        Instead, write non-colloquially, and aim for the golden mean, choosing words and grammar that are widely accepted, unless otherwise directed by your court. Aim for the milquetoast or beige: Excise anything unusual or snarky from the spelling, grammar, and layout of your legal writing. Your goal, in these matters of form, is not to stand out.

        Until ascending to the bench, every appellate attorney should...

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