Writing a better brief: the civil appeals style manual of the Office of the Maryland Attorney General.

• Date: 22 September 2001
• Author: Baida, Andrew H.

1. INTRODUCTION

   Five years ago, the Office of the Attorney General of Maryland held its first Civil Appellate Brief Writing Program. This program was part of a concerted effort to improve the level of written appellate advocacy in the civil appeals handled by its attorneys. Since that time, approximately 350 Maryland Assistant Attorneys General have participated in this program, by listening to lectures about effective brief writing, speaking to appellate judges who sit on the courts before whom the Office most frequently litigates, and engaging in small group discussions in which they have dissected briefs written by them specifically for the program. (1) The centerpiece of the program is the Office's Civil Appeals Style Manual.

   The Manual was created for the purpose of improving and standardizing the hundreds of civil appellate briefs that the Office files each year in state and federal courts. The Manual is premised on the beliefs that not only is a great brief better than a good brief, but that a great brief is more likely to result in good law and a positive outcome for our clients. An excellent brief also properly reflects the high professional standards expected of all attorneys when advancing the Office's role in the appellate process.

   We share with others the substantive components set forth in our Civil Appeals Style Manual, slightly adapted to fit the law journal format. We are eager to share the Manual's principles because we have seen a marked improvement in our appellate briefs. We believe that others can also benefit from the writing principles that our attorneys consider when engaging in the brief-writing process.

2. GUIDELINES FOR THE STRUCTURE AND CONTENTS OF THE BRIEF

   The Manual contains three parts: technical requirements, guidelines, and an appendix. The technical requirements, which are not reproduced in this article, are designed to assure that our civil appellate briefs look the same; they consist of stylistic rules that govern the format and appearance of all civil briefs that the Office files. The guidelines, set forth below, articulate principles that apply to the substantive components of the appellate brief, e.g., the statement of the case, questions presented, statement of facts, summary of argument, argument, and conclusion. The appendix, which also is not reproduced here, contains examples of each of these components.

   While the technical requirements leave the brief writer no discretion with respect to the brief's physical appearance, such compliance is not expected with respect to the Manual's guidelines. While the principles are intended to provide guidance on writing an effective brief, they may not apply in all circumstances. The Office's attorneys are accordingly told that the principles should not be followed if they do not work. The only request we make is that if the individual attorney decides to deviate from the Manual, he or she simply needs to be sure that this decision is made purposefully and is supported by a good reason.

   These guidelines track the structure and contents of briefs filed in the Maryland appellate courts. The rules governing those briefs, however, are similar in most respects to the rules regulating briefs in other appellate courts, and so they may be of assistance to brief writers elsewhere. Attorneys within the Maryland Attorney General's Office are told that these guidelines are not a substitute for the rules and that they are based on the assumption that the reader is familiar with all applicable rules.

   1. Beginning the Brief

      Principle 1: Develop your theme.

      Regardless which part of the brief you choose to write first, you should identify the brief's "theme" and use the theme in writing virtually every part of the brief. Senior United States Circuit Judge Ruggero J. Aldisert defines the theme as "the unifying focus of your brief" that (1) "directs the court's attention ... to where the heart of the matter lies" and to "the equitable heart of the appeal," and (2) answers the question, "What in the heck is the message?!" (2) As Judge Aldisert states, the theme does more:

      The theme not only sets the flavor of your argument but also sets the mood. It is both the focus and the thesis. It directs the judges' attention immediately to where the trial court's error took place and explains straightaway why the trial court was wrong or, when used by the appellee, why it was right. It tells the appellate court what relief you want. (3) An appellate theme may be easy to identify, such as when you can articulate in one sentence what the case is about. In other cases, however, the theme may not emerge until you draft an outline of the brief or just start to write the brief itself. If you develop the theme by resorting to the latter technique, you will need to revisit your work to make the brief fit the theme. Whatever method is used, you must have a theme that shapes your brief.

      Principle 2: Know your audience.

      Consider your reader in the overall approach, style, and tone that you use when you begin to write. As two commentators observe, "[W]e must understand our audience and purpose before we begin to write...." (4) As they point out, however, this observation, standing alone, borders on being a cliche. It is not "enough to know, for example, that your audience is an appellate court and your purpose is to persuade it that a trial court misconstrued a statute." (5) Rather, you need to determine consciously what your audience knows.

      Judges are very familiar, for example, with the principles of statutory construction or the substantial evidence test, and they do not need a multi-paragraph recitation of these maxims. Instead of spending time and energy telling the audience what it knows, and thus advancing no useful purpose, an effective brief devotes greater space to discussing why those familiar principles warrant the result that you seek. In a case involving a statutory construction issue, for instance, focus on the language of the statute and pertinent legislative history; in an administrative appeal raising a substantial evidence question, focus on the factual findings that warrant the appellate court's deference. You will need, of course, to discuss the controlling legal principles in each of these cases, but these principles should be used to advance, rather than to monopolize, that discussion. In other words, "[t]he goal is to find an approach that is informative without being condescending or wasting time." (6)

      Being cognizant of what your audience knows also is important to the overall approach of the brief. While you may assume that judges are familiar with basic legal principles, do not assume that the court is as knowledgeable as you are on the law surrounding the issues on appeal. All briefs (appellant and appellee) should be written so that regardless of the order in which the briefs are read, the judges will fully understand the issues raised and the context in which they are presented.

   2. Statement of the Case

      Principle 3: Advocate from the beginning, but do so without arguing.

      The Maryland rules of court provide that a brief shall contain "[al brief statement of the case, indicating the nature of the case, the course of the proceedings, and the disposition in the lower court." (7) This requirement contemplates a succinct recitation of material procedural facts that describe what the case is about and how it arrived at the appellate level. You need not, however, reproduce the docket sheet or set forth a sterile discussion of the case's procedural history. A brief's sole objective is to persuade the reader that the judicial decision below was either right or wrong. The brief writer should advance that purpose at the earliest opportunity, i.e., at the beginning of the statement of the case. Just make sure that this recitation is done with absolute accuracy and no argument. Consider the following examples introducing a statement of the case:

      Example 1 Appellant Department of Public of Safety and Correctional Services filed charges of removal against appellees Walter Howard and Brandon Taylor in June of 1992, seeking to discharge them from their positions as correctional officers at the Eastern Correctional Institution. Example 2 This case arises out of charges of removal that Appellant Department of Public Safety and Correctional Services filed in June of 1992 against Appellees Walter Howard and Brandon Taylor, seeking to discharge them from their positions as correctional officers at the Eastern Correctional Institution because: (1) one of the officers assaulted an inmate; and (2) both officers made false statements and reports in an attempt to cover up that assault. Each example complies with Rule 8-504(a)(2), yet the second example is more effective, because it tells the reader so much more: It provides information that is very favorable toward one side (the Department) and very unfavorable toward the other (Howard and Taylor); and it delivers a much more complete context with respect to what the case is generally about. A brief that begins like the second example will be more interesting to a judge who reads hundreds of briefs each year.

      Advocacy has its limits, however, and the writer must tailor the statement of the case accordingly. While all argument is advocacy, not all advocacy is argument. Effective advocacy in the early sections of a brief often consists of selecting information and packaging it advantageously. As the following examples illustrate, the statement of the case should advocate; it should not argue:

      Example 1 This case presents a jurisdictional issue triggered by a jury trial request that Petitioner Autos, Inc. filed in a district court action in which its landlord, Respondent Department of General Services, sought to terminate its lease. The district court erroneously entered an order striking Autos, Inc.'s demand for a jury trial, even though the jury trial request by operation of law divested the district...