5 Ways To A Winning Appellate Brief

By Christine Caulfield

Law360, New York (October 21, 2009) -- As oral argument continues to lose favor with overworked appellate courts, appeals are increasingly being won or lost on the strength of the brief, lawyers say.

Bad brief writing can doom a case long before the hearing date is set, but if you follow these five golden rules, you'll put your best foot forward.

Honesty Is the Best Policy

The worst thing a lawyer can do is try to pull the wool over the court's eyes to advance his case, according to experienced practitioners.

Misrepresenting the record, misquoting cases, or omitting facts and precedent to hide the weaknesses in your argument will not only score you no points with the judges, but it will damage your standing with the court, they said.

“Judges will lose patience with you if they can't trust you,” said appellate litigator Roy Englert Jr., a partner at Robbins Russell Englert Orseck Untereiner & Sauber LLP.

A sure way to lose credibility, and quickly, Englert said, is to take an argumentative tone from the very beginning.

One might try to be artful in selecting the facts, he said, but phrasing them in an argumentative way, or slanting them, won't win you any plaudits.

“A lot of people start their briefs by presenting even the question at issue in a slanted way, but judges think, if you're slanted on page one, you're only going to get more slanted. You have to be careful to make sure everything you say is believable,” Englert said.

Selective quoting and the misuse of ellipses are some ways in which lawyers may try to conceal damaging facts and twist the argument in their favor, but such deceptive maneuvering is ultimately self-defeating, attorneys said.

“I read a brief where the lawyer quoted part of a contract with ellipses, and the missing words were critical. In the end it looks bad, it looks like their argument depends on the elimination of those words,” said Sylvia Walbolt, chair of Carlton Fields' appellate practice group.

And if you don't come clean with the court, chances are you'll be found out anyway, said Kevin Newsom, a partner at Bradley Arant Boult Cummings LLP.

“If you don't air the dirty laundry, the other side will expose it, and even if you weren't trying to hide it, it will look like you were,” Newsom said. “You have to shoot straight with the court. Recognizing the cases that are against you will stand you in better stead with the court than ignoring them.”

In English, Please

The notion that lawyers must obscure their arguments with meaningless legalese is nonsense, experts said, and you should write your briefs the way you talk.

“There's one view that says lawyers have a distinctive way of writing, but I think it's a distinctively bad way of writing,” said Newsom, who is well-known for his straightforward, no-nonsense briefs.

“Lawyers should write their argument the way they would tell it to a neighbor over the fence. It doesn't need to be a Grisham novel, but it should be readable,” he said.

Being able to convey exactly what you intend to convey in the permitted word limit is more difficult than it seems, but it's the most crucial aspect of effective written advocacy, Mayer Brown LLP partner Andrew Frey said.

“People write in a way that does not make it clear to the reader what it is they're saying. But when you're dealing with judges who will read your brief probably only once and form an opinion, the clarity of writing and the ability to communicate what you intend to communicate is very important,” Frey said.

Frey suggested asking a colleague unfamiliar with the case to read a draft of your brief, “to make sure they come away from it with what you want them to come away with.”

A brief is not a set of technical facts, legal terms or Latin, but a piece of prose, Englert added.

“It's designed to be a persuasive essay, a document you want to be readable, coherent and elegant, to the extent that lawyers can ever be elegant,” he said.

And when complicated, technical terms are unavoidable, as they can be in many business cases, be sure to preface them with easy-to-follow context, Englert said.

“I've been writing briefs in patent infringement cases lately, and I've found it is often better to bring the technical aspects in only if you have given the legal context first,” he said.

“In criminal cases, the facts are the easiest part of an appeal to understand, but if the point of your argument is who did what experiment and got what result, or which isomer was key to the discovery, eyes are going to glaze over,” Englert said.

What makes a brief readable is good transition, said Walbolt, who also calls on colleagues to read over her briefs.

“The holy grail of brief writing is to make sure it is read the whole way through. If you have good transition, and don't just plonk your arguments on the paper, the judges will just keep reading,” she said.

The importance of an introduction cannot be overstated either, Walbolt said.

“I always have in a couple of sentences at the beginning that alert the judges to what the issue is before I launch into a legal or factual background,” she said. “When I do that, I try to pretend I am only going to have one paragraph to tell my whole story.”

Edit, Then Edit Again

Being succinct and staying within the word limit without cutting muscle from your argument can be challenging, but bogging your brief down with excess verbiage is the mark of the overeager amateur and will advance your case none, attorneys said.

“Your case is more interesting to you than it is likely to be to your judge, and you probably want to say more than the judge wants to hear,” Frey said. “You really have to use your judgment about what's worth saying. Yes, you want to lay out the logic of your arguments fully, but you don't want to be long-winded and put the court off.”

Editing is essential, Walbolt said. She runs through multiple drafts of her brief, editing first for substance, then style, then clarity.

“The biggest problem I see with briefs is that it's clear they're not edited,” she said. “Even if I think my brief is perfect, I go through cutting excess words. It's amazing how much simpler it makes the writing.”

Editing out tangential arguments is also advisable, Newsom said. He recommended confining the brief to the two or three issues that will drive the result in your favor.

“One problem that a lot of lawyers run into is trying to do too much on appeal. If somebody marches into the appeals court and says the trial court got it wrong in 18 different ways, well, that's not even plausible,” he said.

“If you want to win your case, an important way to do that is to make the judges' job easy, and if you pepper them with tangential nonsense they have to hack their way through your brief,” Newsom said.

Write an Outline

Lawyers may think they know their arguments back to front, but they don't always know how to package them for maximum effect, or even logically, experts said.

“You might have a lot of ideas all clamoring to be first, but you can't put them all first so you have to think about how to arrange them most effectively,” Frey said. “Thorough, careful outlining is crucial.”

Putting your arguments in the wrong order can damage their persuasive power, he said.

“If you start off arguing over damages when you also want to argue the bigger issue of liability, it conveys a message to the judges that you don't believe in your liability argument. Otherwise, why would you be starting with damages,” Frey said.

An outline, Walbolt said, forces you to organize your thoughts in a logical way.

“If you are detailed enough, an outline literally writes the brief for you. If you just start writing, you're never forced to really think about your argument and the ramifications,” she said.

An outline can also serve as the basis for the table of contents — that section of the brief that is all too often given short shrift by lawyers, Walbolt said.

“I was at a seminar once where a judge said the first thing he read was the table of contents, and ever since then I really pay a lot of attention to it, to make sure it tells the story and walks the reader through my argument,” she said.

Stay Above the Fray

Avoid personal attacks on opposing counsel or the trial court judge, lawyers stressed.

“Criticizing your adversary instead of the reasoning is totally counterproductive and never gets you anywhere,” Englert said.

“Judges care a lot about maintaining civility and don't like what they view as ad hominem attacks,” Frey said.

“It will certainly happen that your adversary will do something extremely annoying or that you view as unfair, but make your point without accusing them personally of misconduct,” he said. “Make your point without a lot of adverbs.”