United States: Bad Appellate Brief Writing Tips: How to Alienate the Panel Before You Say a Word

This article focuses on what not to do if you wish to prevail in an appellate matter. Part of this is, unfortunately, the painful lessons learned from experience. Other observations here are derived from listening to appellate judges discussing their observations about what irks them most. I write in the sincere hope that your own appellate efforts will be more successful by avoiding the following.

Wait Till the Last Minute

Appellate writing is a distilled product. Because everything in the brief (the preliminary statement, what is included in the record and how the record is organized, the framing of the issue, the statement of facts, etc.) all need to be harmonized to reinforce your argument on appeal; the process simply takes time. Framing the issue, which is perhaps the most important decision you'll make, is a painful process because you have to "murder your darlings" and look coldly at what precisely is the issue you want the appellate panel to decide. One final thought is that if you want client input or the thoughts of a colleague or friend, you need to give them time to read the draft and to comment upon it. The process of refining and sharpening simply cannot be done in a hurry.

Count on Oral Argument to Carry the Day

Time and again appellate judges are asked whether oral argument makes a difference, and the normal answer is that: (a) it can in the rare case; (b) it can also sink an appeal; and (c) in most cases, oral argument really does not affect the outcome. I believe that oral argument can make a difference, but if the panel isn't "warmed up" by a well-written brief, the likelihood that you can convince the appellate panel of your cause by pure brilliant oral advocacy is greatly unlikely. Bear in mind that in an increasing number of cases both the New Jersey Appellate Division and the United States Court of Appeals advise that they are going to decide the matter without any oral argument.

Don't Waste Time Framing the Issue

Gerry Spence, a great trial lawyer, said once that "if you allow me to frame the issue, I can win every time." Although he was addressing trial practice, framing the issue is perhaps even more critical on appeal. Appellate practice is rarely based upon raw emotion, but rather it is about the issue and how the law applies to that issue. I strongly recommend reading Bryan Garner's "The Winning Brief," which is a great resource. Chapters 8-10 address defining the issue and then stating it succinctly. As I cannot state the matter better than Garner has done, I respectfully refer you to his book.

Argue the Facts

Because trial courts are given great deference on determinations of issues of fact (and juries even more), challenging the facts and attacking the incompetence of the trial court judge is simply not a winning strategy. Yes, in the rare case you have no choice and must attack abuse of discretion on determination of a fact. But, that is the rare case. Be selective because the area where you are clearly most likely to get a fresh read from the appellate panel is on an issue of law.

Be Repetitive

Having discussed "pet peeves" with many appellate judges, one of the constant complaints I hear is that appellate briefs are too long and too repetitive. Make your point once and make it powerfully. The fine point here is that you can reinforce your argument by pointing out multiple reasons why your theory of the case must be right and why your adversary is wrong. Several appellate judges have noted that it is condescending and insulting to their intelligence to make the same point repeatedly—they can read and they got it the first time.

Use Long Block Quotes

Thomas Edison had the same statement posted on every room of his facility in Edison, New Jersey: "There is no expedient which a man will not go to avoid the labor of thinking." A long block quote reflects the inability to pick out what is essential. Consider what you really need from that incredibly long block quote,; use precisely what you need and nothing more. If you fail to select what's important, the long block quote dilutes the power of what you need. Don't let the reader lose the legal tree for the forest.

Raise Every Issue Shotgun Style

E.B. White once said of good writing that you have to "murder your darlings." Because appellate writing is distilled, it is essential to focus on what is the real issue—the issue that captures the essence of why you are right and why your adversary is wrong. A great brief writer struggles with framing the issue. Part of picking the issue is also removing the matters that are not the issue. Be cold-hearted with your own writing, and pick the issue that will win. Kill the ones that are a poor image of the issue or that are merely corollary.

Ignore the Standard of Review

The standard of review is not a technical nicety. It is polestar by which you must steer the facts. The most common standard of review is abuse of discretion regarding factual determinations and de novo on issues of law. If the matter below was decided on a motion to dismiss or summary judgment, however, the trial court may be entitled to no deference at all. Beware that the standard of review may be mixed because the issue on appeal may be a mixed question of fact and law.

Add the Facts You Failed to Add Below, or Misstate the Facts

A lawyer's reputation is his or her stock in trade. Although this is a quaint adage from the past, I believe it whole-heartedly. I note this because in a close appeal the appellate panel will consider everything (the facts, the briefing, the arguments of counsel), and one way to lose credibility for you and your cause is to add facts to the record. There are multiple ways in which appellate counsel can reach outside the record, but do it openly and advise both your adversary and the court that you are doing so.

Misstating the facts is simply unforgiveable. You must be scrupulous in stating the facts accurately and citing to where in the record those facts are reflected. Scrub and clean anything that could potentially mislead the appellate panel. If the appellate panel knows that you have the facts wrong, you've likely lost the appeal but, as importantly, you have injured your reputation at the bar. In the event that your brief states a fact inaccurately (or it is overstated), own up to it, because if you fight the obvious error, you may not recover credibility before that panel.

Rely Upon More Pages to Really Get Your Point Across (Be Repetitive)

It takes great courage to write a short brief. We are afraid that the court will miss the point or that our client will be offended that we didn't harp on every error. By being brief and concise, you are really highlighting what is important. A lengthy brief typically reflects the inability to separate wheat from chaff. The corollary problem with a lengthy brief is that by focusing on everything, you are really focusing on nothing. Be brave, be brief. (Notably, there is at least one kind of brief where a full-length brief simply is the only choice, and that exception is a brief showing a course of conduct or some other fact-intensive analysis.)

Conclusions Are Boilerplate

"For the foregoing reasons, ...." If you're not going to spend the effort to think for five minutes about why the court should rule in your favor, then simply leave the conclusion out. Conclusions are not a vestigial appendage; they are a great opportunity to state in one paragraph why the court should rule in your favor.

Conclusion

Occasionally a truly gifted appellate writer can turn an ordinary appeal into a page-turner. Unfortunately, most of us have more humble aspirations of at least not putting the appellate panel to sleep. After speaking to a number of appellate judges on the New Jersey state and federal courts, I believe that the bad practices identified here neatly encapsulate the complaints I hear most frequently from our colleagues sitting on the appellate bench. Frame the issue, sharpen your argument, and have the courage to go right for the jugular.

Originally published in the July 22 issue of the New Jersey Law Journal

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.