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.


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.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions