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How to write an appellate brief

Nine years ago, I wrote an article for the DRI appellate newsletter, Certworthy, on preparing to write an appellate brief. The idea behind the article is that 90% of the work occurs before the actual writing begins. I attempted to describe the process I normally went through in preparing to write a brief.

Last year, I updated the article for including in a DRI-published book, A Young Lawyer’s Guide to Defense Practice. I added some material to describe the processes of drafting and editing the brief — and making damned sure it gets filed timely. (For more information about the book, visit DRI’s bookstore.)

You can download either version by clicking on the appropriate link below. I don’t offer them as instructions for how you should write a brief, but as descriptions of how I write a brief — techniques that work for me. Different techniques may work better for you.

Download Preparing to Write an Appellate Brief (PDF, 434K). Certworthy, Spring 1998. Copyright © 1998 by DRI and Raymond P. Ward.

Download How to Write an Appellate Brief (PDF, 128K). Copyright © 2006 DRI and Raymond P. Ward.

Garner on Writing and Language

GarnerIf you want to be the first kid on your block to own Bryan Garner’s next book, Garner on Writing and Language, you can pre-order it from Barnes & Noble. The scheduled release date is September 25. Here’s the blurb:

“The nation’s foremost expert on writing, style, and usage, Bryan Garner, now collects his finest essays on writing, language, and style, and offers them in this in this massive anthology. These articles cover the gamut from advice for beginning writers, to essays on writing successfully as a professional. Also included are hilarious chapters on puns, curiosities, vocabulary use, and other comical writing escapades. Further chapters contain solid advice on making oneself a great writer, grammarian, and stylist. It’s perfect for anyone who works with the written word.”

The risk of the kitchen-sink approach

When we try to narrow down the issues and arguments in a brief, throwing out the weak ones and keeping the strong ones, we take a risk: the risk that we may be getting rid of something that would have persuaded the judge. So should we get rid of those weak issues and arguments?

Yes, we should, because the risk created by throwing them in is greater than that created by throwing them out. Kenneth Oettle says it better than I can:

Gamblers will continue to gamble even as their stakes dwindle as long as they receive intermittent, unpredictable payoffs. This is how slot machines work. Random payoffs keep the patrons pulling.

So it is with weak arguments. We have all won something with a weak argument, so we keep using them. We seem to think that persuading a judge is a matter of pushing buttons until we find the right one.

The right argument is, in a sense, a button — if you press it, you persuade. But weak arguments are buttons, too, and unlike the “Close Door” buttons on elevators, they are connected to something. At a minimum, weak arguments hurt your credibility and cast doubt on your belief in your case; they irritate the court because they lengthen the brief; and they may even insult the court’s intelligence.

James McElhaney says the same thing in a different way:

Are there risks in [discarding weak arguments]? You bet. Good legal writing is good writing. It’s also good lawyering. Good writing and good lawyering both involve taking risks.

That runs counter to our law school training, where we were rewarded with good grades for spotting and articulating every conceivable legal issue but were almost never expected to drop the ones that wouldn’t fly in the real world.

Nobody told us that failing to toss out the arguments that would not fly ultimately runs a bigger risk: creating a mishmash of legal theories that produces lumpy, sodden writing.

Another one bites the dust.

Today’s legal-writing quotation comes from Little Red:

Clark recently learned that the Law Journal is going to publish his article, “Poetry or Production: Functionality in the Architectural Work Copyright Protection Act.” ....

You think this would be interesting to me.... But I’ve read some of his past papers and articles, and its like reading a different language. The Clark I married used to write beautifully and well... creatively. I guess there’s something about first year Legal Writing that sucks all the imagination out of you and allows you to become fluent in legalese.

A non-lawyer’s impression of bold, underlined, and italicized legal writing

This morning’s Times-Picayune contains an interesting non-lawyer’s perspective on typography in legal writing. It’s in an op-ed piece by Stephanie Grace, commenting on a brief filed by Louisiana's attorney general, Charles Foti. In a case being prosecuted by Foti’s office, the defense moved to disqualify Foti based on a conflict of interests. Foti filed an opposition that Grace found “thoroughly bizarre.”

What created this impression of bizarreness? Besides the content, it was Foti’s liberal use of “unusual emphasis”: underlining, bold type, italics, all-caps, and exclamation points. Unfortunately, the Times-Picayune’s web site does not reproduce those typographical special effects; so below is an except from Grace’s column showing how it looks in the newspaper:

It is “mandatory” that the AG be involved in cases such as this, he argued.

“The outcome of either the civil or criminal aspects of this case present no personal advantage to Charles Foti, Jr., nor any person in the Louisiana Department of Justice,” he opined elsewhere.

“The sole purpose in this attack is the mistaken belief that the Attorney General may somehow ‘fold’ rather than fight the present case,” he continued. “The present motion is clearly a violation of ethics in and of itself by failing to follow the proper procedure and protocol for making such an allegation. COUNSEL IS FULLY AWARE OF THIS DEFECT AND THE DESIRED EFFECT THEY SEEK TO ACHIEVE AND THE MADNESS OF THEIR METHOD.”

And then there was this: “What the defendants request of the court is to remove the Attorney General and his office for doing his job!!!!”

That’s right, folks, four exclamation points.

Grace’s critique: While a criminal prosecution is personal and emotional for the defendant, the victim, and the victim’s family, “it’s not supposed to be [emotional] for the prosecutor.” She continues:

While everyone likes to win, Foti’s mission should be to work within the confines of the system, even if it does not lead to the outcome he vehemently desires. And that requires a measure of level-headedness and dispassionate analysis that he seems to have trouble mustering these days.

And it requires him to address the other side’s legal arguments on their merit, not take them as an affront.

Our lesson for today: If your written argument is laced with bold, underlined, or italicized text, you’ll make a strong impression—but it won’t be a good one.

Automatically update your cross-references

A.J. Levy writes:

How many times have you written a brief and you're on page 10 and you want to refer to something above that's on page 5. So, you write “See page 5, supra.” But later you put some new material before page 5, and page 5 becomes page 7. Now your reference is no longer accurate. Then, unless you forget, you manually change 5 to 7. However, that can be tedious if you have four or five or more cross-references. And, even if you only have one, you might forget to make the change.

That’s the problem. For the solution—instructions on updating cross-references automatically—read the rest of A.J.’s post.