Effective brief writing and oral argument: gaining the inside track.

• Author: Gersten, David M.

This article is designed to help all practitioners become better brief writers and better presenters at oral argument. To that end, no matter how many briefs a practitioner has written or how many arguments he or she has made, it is always possible to improve. Further, even though a majority of a practitioner's appeals may have been winners, that outcome may have been the result of extraneous factors rather than his or her appellate advocacy. Those factors range from having better facts to having sympathetic judges on the panel. This article will focus on the fundamentals that consistently produce winning appeals.

This article is solely my view of the appellate process, reflecting my nine years as a trial judge and 18 years as an appellate judge. While I am certain some of my appellate brethren may disagree with my views, I believe that most would agree with them.

The Brief

First and foremost, the practitioner should always cater to his or her audience. The key questions are: "Who is your primary and secondary audience" and "What are you trying to accomplish?" Your audience is, first, the appellate judges and, second, their law clerks, who are lawyers.

There are some basics that all practitioners should know before the brief writing begins. The judge is the person who has to read what you write. That judge should never be as familiar with your case as you, the brief writer. Therefore, it is your job to give the judge only the necessary information that he or she needs to know to affirm or reverse your case.

Next, it is safe to assume that the law clerks will, at some time, also read the brief. Therefore, you should also give the law clerks ammunition to lead them to the obvious conclusion that your cases are stronger than your opponent's cases.

* Don't Try to be Garcia-Marquez or Shakespeare--I have read countless briefs that seem to be the product of a stifled or frustrated novelist. They cause me to mutter to myself, "Gimme a break." The effective brief writer should always strive for simplicity in wording and structure. Remember, you should not try to impress a judge with your command of the English language. Rather, present your case in a straightforward and simple way that leads the judge to conclude that you should prevail on appeal. That should be your single focus. Unnecessary fancy language and complex concepts should be left to the novelist or professor.

You, the effective brief writer, should state and argue only what is necessary. Leave out repetitive arguments. Do not present afterthoughts that distract from your case or leave the judge feeling that you were just trying to fill up pages because you have a weak case. And, of course, avoid footnotes. Although the practitioner may be trying to impress his or her client with a long, wordy, and poetic document, winning the appeal will impress your client far more than a lengthy, losing document.

The practitioner should strive to make his or her brief short, but interesting. Do not recite the history of the litigation. Appellate judges do not want to know about every motion that attacks the sufficiency of the complaint or about every amended complaint or pretrial motion. Rather, the only information...