Improving Your Appellate Briefs: the Best Advice from Bench, Bar, and Academy
| Date | 01 January 2011 |
| Publication year | 2011 |
| Citation | Vol. 2011 No. 12 |
Winter 2011-#7. Improving Your Appellate Briefs: The Best Advice from Bench, Bar, and Academy
Volume 36, No. 4
Winter 2011
Good Advice Is Hard To Find
Last summer, while preparing to teach a fall course in appellate advocacy, I read a potpourri of articles addressing various aspects of appellate brief writing. Some, usually written by judges, appeared in state bar journals and were aimed at an audience of practitioners. Others, typically written by professors, appeared in law reviews and were directed primarily at fellow professors.
Both types of article had limited value for a conscientious practitioner seeking to enhance brief-writing skills. The bar journal articles were often too short and superficial to be as useful as they could be. Some offered overly general advice, such as, "write short, simple declarative sentences," while neglecting to provide examples or to identify resources designed to improve writing. Others addressed just one part of appellate brief writing, so that the practitioner seeking general improvement would have to read many articles to find the desired information. The law review articles, on the other hand, were usually long and often only tangentially related to law practice, thereby discouraging the busy practitioner from sifting through them to extract a few nuggets of practical wisdom.
I found only one article featuring both academic depth and helpful tips; it was detailed enough to model good brief-writing practices, yet clear and concise enough to be accessible to busy practitioners.(fn1) Unfortunately, the article's emphasis on Arkansas practice limits its value for practitioners in Vermont and other states. But it inspired this article, which aims to combine the same depth and practicality for the benefit of Vermont and New Hampshire practitioners seeking to improve their appellate briefs.(fn2)
This article will distill the best available advice from practitioners, judges, and professors, respectively, about writing briefs. It will draw on my teaching and my brief-writing practice, and on the academic writing and practical experience of others, to offer instructional tips designed to improve all aspects of your appellate briefs. It may be most helpful for the practitioner who writes a brief infrequently and needs a comprehensive, yet concise, guide to brief writing. But it will also serve as a refresher for the lawyer who writes briefs regularly, yet has not consulted instructional materials on this subject since the early years of practice or a long-ago CLE seminar. Thus, both the bewildered novice and the grizzled veteran can benefit from this article.
Before turning to writing issues, it is necessary to highlight the threshold question in all appeals, namely, whether or not to file an appeal. The decision to appeal must follow your careful consideration of the following questions:
1. Has the trial court issued an order suitable for an appeal-that is, a final order?
2. If so, has the issue that I wish to appeal been preserved for review?
3. If the answer to the previous question is yes, what is the appellate court's standard of review, and can I frame my argument in those terms?(fn3)
4. Has the trial court erred in a sufficiently clear and compelling way that I can make a forceful argument to an appellate court for reversal?(fn4)
5. Does the case have an element likely to move the appellate court to reverse despite the tendency of appellate courts to affirm?
6. Is an appeal in the client's best interest?(fn5)
Answering these questions is beyond the scope of this article. Besides, excellent resources for answering them already ex-ist.(fn6) Still, the final question is less straightforward than the others, so it merits some discussion.
When evaluating the wisdom of appealing, think about whether an appeal could make matters worse for your client than the trial court's decision has done by producing an adverse precedent. For example, if the issue for appeal is critical to the interests of the business or profession to which your client belongs, decide whether the client would be "better off" living with an adverse trial court decision than appealing and risking an unfavorable, precedent-setting appellate ruling. Foregoing an appeal is especially wise under these circumstances when the facts in your client's favor are weak.(fn7) Seeking legislation that could negate or mitigate the effects of the trial court's decision on your client's business or profession might be preferable to filing a risky appeal.(fn8)
After answering the questions noted above, discuss those answers with your client so that the client can make an informed and realistic decision about whether to appeal. Assuming that the client wishes to appeal, and you do not think an appeal would be frivolous, you must begin to contemplate the brief you will write.
After ample contemplation, including a review of the record, much note-taking, and perhaps even the completion of an outline, you feel ready to write. Before doing so, though, consider "the significant time pressures" that appellate judges face.(fn9) Besides reading briefs, they must draft opinions, hear oral arguments, attend court conferences, review opinions drafted by other judges, supervise staff, and keep abreast of legislation affecting the judiciary and, in the case of state appellate judges, state bar matters. "Given this workload," one commentator has observed, "judges have little time to discern facts, issues, or arguments from poorly written briefs."(fn10)
Therefore, brief-writing skills are more important to success on appeal today than ever before. "A poorly written brief," notes a recent commentary, "can interfere with [the judges'] preparation and do a disservice to the client by failing to state clearly the legal issues and their proposed resolution."(fn11)
Keeping in mind the importance of your brief, turn your attention to the first substantive section, the "question presented" or issue statement. Justice Jim Regnier of the Montana Supreme Court writes that framing the issues for appeal, which is the purpose of this section, "may be the most important step in preparing your brief."(fn12) Perhaps that is why, after finally completing a satisfactory issue statement, I feel that the hardest work is behind me and that the direction of the brief is clear.
The first rule of drafting issue statements is to limit the number of issues identified. Justice Regnier advises, "Limit yourself to three legal issues."(fn13) The late Supreme Court Justice Robert Jackson observed that with respect to issues, "[m]ultiplicity hints at lack of confidence ... [m]ultiplying assignments of error will dilute and weaken a good case and will not save a bad one."(fn14)
For these reasons, I almost always limit the "Issues Presented For Review" to three. If the case appears to include more than three issues, or if the lawyer who hires me to write a brief insists that more than three issues exist, I can usually include them, without violating Justice Regnier's rule, by presenting the excess issues as subparts of the main issues, which is typically what the excess issues are anyway. In nine cases out of ten, then, you should be able to honor the three-issue limit.
The numeral three also applies to the number of available methods of stating an issue. One method is the sentence beginning with the word "whether." This method can work reasonably well, as in
Still, the "whether" format can lead to awkward phrasing, as in the following example: "Whether compliance with the Rules of Judicial Conduct, which declare that they are intended to 'provide a structure for regulating conduct through disciplinary agencies,' but 'are not designed or intended as a basis for civil liability or criminal prosecution,' may be enforced by a District Attorney ... "(fn16)Whether the Family Court abused its discretion by nullifying Mr. Smith's child-support-and-maintenance arrearage of $10,000, which a Magistrate calculated after an enforcement hearing, even though Mr. Smith had coerced Mrs. Smith into accepting an inadequate amount of spousal maintenance, then thumbed his nose at the Magistrate's authority for a full year by failing to pay the amounts he had agreed to pay.(fn15)
The previous sentence only becomes understandable on the second or third reading, so it is not the type of sentence to present to a busy appellate judge. The sentence is difficult to understand because thirty-seven words separate the subject, compliance with the Rules of Judicial Conduct, and the verb, "enforced." The writer appears to have lost control of the sentence, which is easy to do when virtually the entire sentence follows the word "whether." Therefore, I usually forego the "whether" format, using instead the single-sentence question. For example, this format would ask,
Did the Family Court abuse its discretion by nullifying Mr. Smith's child-support-and-maintenance arrearage of $10,000, which a Magistrate calculated after an enforcement hearing, even though Mr. Smith had coerced Mrs. Smith into accepting an inadequate amount of spousal maintenance, then thumbed his nose at the Magistrate's authority for a full year by failing to pay the amounts he had agreed to pay?
I prefer the single-sentence question to the "whether" format because a question tends to pique my curiosity, thereby commanding my attention, more than a sentence does. Besides, the question format, if employed properly, enables you to frame an issue in such a way that an affirmative answer favors your client's position.(fn17)
The third method of presenting an issue is the multi-sentence question, which...
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