Effective Appellate Briefing
By: Arend J. Abel, Attorney
What’s the best way to write an effective appellate brief? The short answer is to use every part of the brief as an opportunity for advocacy. Here are some section-by-section tips for doing so.
The Table of Contents
The first thing the court sees when opening the brief is the table of contents. A good table of contents will be an outline of the argument, so the Court can read, understand, and hopefully be persuaded by the argument before ever reading a substantive paragraph of the brief. The best way to create such an outline is to make sure each heading in the argument is a full statement of one of the points of the argument, not just a statement of the subject of the section or subsection. So, a heading that says, for example, “The Statute of Limitations Did Not Begin to Run Until Mr. Brown Learned Smith Was Planning to Sell the Business When He Bought Mr. Brown’s Stock” is superior to one that simply says “The Statute of Limitations Has Not Run” or a subject heading “Statute of Limitations.” Worse still is the uninformative heading “The Trial Court Erred in Granting Summary Judgment.”
The Table of Authorities
While it may not be obvious, even the Table of Authorities can provide a subtle opportunity for advocacy. The advocate may group together all statutes and rules, which may make that section of the table seem more substantial, particularly if there are relatively few of each. Conversely, separating out statutes may make sense if the case turns on key statutory language. Depending on the particular case, it may make sense to separate federal and state cases, or in-state and out-of-state cases. The advocate should make a deliberate choice in organizing the Table of Authorities.
The first rule the advocate should follow for the issues is to be selective. While an appellee must address the issues the appellant raises, the appellant should select only the strongest issues supporting reversal, typically no more than two or three, and perhaps only one. A court that sees a large number of issues may conclude the advocate doesn’t have confidence in any of them. Alternatively, the court may conclude the advocate can’t be counted upon as a guide to what’s important in the case.
In stating the issues, I’m a big fan of what Bryan Garner calls the “deep issue.” Such an issue is in the form of a syllogism, beginning with an indisputable or easily demonstrated point of law, followed by the case facts relevant to the issue, and ending with an invitation to the reader to reach the conclusion the writer hopes for. For example:
Under Indiana law, a court may not award attorneys’ fees unless contract or statute provides for them. Here, there was no such statute or contract. Did the trial Court err in awarding attorneys’ fees?
Note how much better the issue above explains the case than “Whether the trial court erred in awarding attorneys’ fees.” Note also how the issue invites the reader to draw a conclusion favorable to the writer.
Statement of the Case
Under the Indiana Rules of Appellate procedure, the Statement of the Case must contain three elements: 1. The nature of the case; 2. The course of proceedings; and 3. The disposition below. The first two elements provide opportunities for advocacy. The “nature of the case” portion allows the advocate to describe the case in terms favorable to the client’s position, as long as there is not excessive “bias” in the case description. For example, an advocate may describe a case as one where “Mr. Jones’s estate sued Mr. Jones’s doctor because the doctor overlooked cancer on an X-ray.” Such a description is more effective than simply saying “this is a medical malpractice case involving a failure to diagnose cancer.” Both are accurate and essentially objective, but the former provides more detail and describes the case in a way that is more favorable to the plaintiff.
In the “course of proceedings” section of the Statement, the advocate’s job is selecting those rulings that show the trial court bent over backwards to accommodate the other side and/or gave little latitude to the advocate’s client. As long as the rulings are reasonably relevant to the “story” of how the case came to be decided, such selection can create a subtle impression that the trial court should be reversed, or affirmed, as the case may be.
Statement of Facts
The Statement of Facts is where the advocate’s job begins in earnest. In my view, the Statement of Facts is the most important section of the brief. If the Court believes a party should win by the time the Court is done reading the Statement of Facts, then there is a good chance the party will win.
As with the Statement of the Case, selection of the facts to include plays an important role in advocacy. The facts should be selected to succinctly tell the client’s story. The advocate should omit extraneous details, such as dates, where they are not key to the story or the issues in the case. An advocate must acknowledge adverse facts, but need not emphasize them. Sentence structure can play an important role in emphasizing favorable facts and de-emphasizing unfavorable ones. Favorable facts can be emphasized with short, declarative sentences. Unfavorable facts can be de-emphasized by placing them in introductory clauses in longer sentences.
Although argument in the Statement of Facts is prohibited, there are usually multiple accurate, non-argumentative ways to state the facts. For example, in an automobile case, it may be accurate to say that plaintiff’s and defendant’s cars “collided with one another,” but it may also be accurate to say that “defendant’s car hit plaintiff’s car.” The latter is both more evocative and more favorable to the plaintiff. Similarly, the advocate should avoid using medical jargon to describe an injury, where possible. Rather than saying a plaintiff “sustained a fractured pelvis,” say “plaintiff suffered a broken hip.”
Summary of the Argument
The Summary of the Argument should, as the name implies, summarize the Argument section of the brief. To do this properly, the Argument must be complete before the Summary is written. I always write the Summary from memory, immediately after reading the Argument from beginning to end. That way, I’ll capture the entire argument in a way that is straightforward. The Summary will also flow as if written all at once, because it was. The Summary should not have headings. If the Summary is difficult to follow, there is a problem with the way the argument is structured.
The Argument section of any brief must be well-organized and understandable. To accomplish this, the advocate should start with a complete outline of the points to be made, including subpoints. However, I recommend only using the top-level headings, corresponding with the issues presented, while actually drafting the argument. Otherwise, the subheadings can become a crutch that obscures a lack of logical organization within the main sections of the Argument. The Argument should flow smoothly, one paragraph and one section to another. Ideally, an intelligent non-lawyer should be able to follow and understand the Argument. Subheadings can be added back in later as an additional guide to the reader, but the argument should be coherent without them.
Simple prose is the advocate’s best tool in making the argument. Unnecessary legal or other specialized jargon gets in the way of understanding, and a court can’t be persuaded by an argument it can’t understand. Short, declarative sentences are also better than meandering sentences with multiple clauses.
Avoid block quotes and footnotes. Block quotes are difficult to read, so the reader may be tempted to skip over them. Footnotes interrupt the flow of the argument. As a rule, if a point is worth making, it’s worth putting in the text. If the text of the footnote doesn’t fit in the location where the footnote is, that indicates an organizational problem. I try to eliminate all footnotes in a brief, and I usually succeed.
“Emphasizer terms,” such as adverbs and adjectives, distract from the key argument points. Using the term “clearly,” for example, adds nothing to the argument, and may invite the reader to question whether the issue really is clear. Typically, if the issue were clear, it would not be on appeal.
It is also a mistake to use terms impugning opposing counsel’s integrity. Accusing opposing counsel of being “disingenuous” or “misstating the law,” for example, does not advance the advocate’s position, but is likely to irritate the Court. Describing opposing arguments as “frivolous” or “totally without merit” likewise will irritate the Court. Having heard enough appellate judges complain about this issue, I now say, at most, that an opponent’s argument is “incorrect” or “erroneous.” The better practice is to show the Court that the competing argument is incorrect, rather than using hyperbole to tell the Court it is.
Finally, the argument must have a sound basis in law and fact. If there is not a good basis for the advocate’s position, the issues and arguments probably have not been properly selected. But regardless, the advocate must acknowledge weaknesses in the advocate’s position. An advocate who waits for the other side to point out weaknesses in the advocate’s case will lose credibility with the Court.
The Conclusion should state exactly what the writer believes should happen following the appeal. Counsel for the appellee can simply say the trial court should be affirmed. Counsel for the appellant, on the other hand, must explain what should happen on remand. In addition, the Conclusion can and should sum up why the writer’s client should win. For example, the following is an effective conclusion:
The trial court erroneously applied the Statute of Limitation. Accordingly, the Court should reverse the trial court and remand this case for trial.
This article covers only a few tips for writing an effective appellate brief. Truly effective appellate advocacy takes years of practice and a solid appellate brief requires time, patience, and a lot of editing.