The primary mission of an appellate attorney is to prepare a comprehensive brief, setting forth a persuasive legal argument that is well-supported by case law and the applicable statutory or regulatory framework. Because most appeals are won or lost “on the briefs,” an appellate lawyer must be, first and foremost, a skilled writer. As important as being a strong writer is to the process of preparing an effective appellate brief, however, there are many other considerations and strategies that can transform a well-written brief into a compelling, memorable, and ultimately persuasive presentation. From understanding who your audience is, to applying storytelling techniques, avoiding jargon and legalese, editing (and then editing some more), and using visual aids, here are my top 10 tips for writing a persuasive appellate brief.
1. Know Your Audience
In the context of appellate advocacy, the role of the judge is very different from that of the practitioner. Justice Richard A. Posner, a well-known and respected federal appellate judge for over twenty-five years and a prolific writer, has said that his “essential advice to the appellate brief writer is to put yourself in the judge’s shoes.” This will help appellate practitioners to “grasp the relevant differences between judge and advocate.” While many appellate judges were practitioners once, many were not. Even those who were are unlikely to have been experts in the particular area of law that your case involves. That is to say, appellate judges are really the last generalists in the practice of law; they know something about almost everything, but few are experts in any particular area.
According to Judge Posner, appellate brief writers must understand the following things about appellate judges:
- They won’t spend nearly as much time on the case as you will;
- They are likely to know far less than you about the parties and the commercial field in which the cases arise or other real-world context of the case; and
- For the most part, they are practical people who want to reach a sensible and reasonable result in those cases not governed by clear statutory text or precedent
2. Tell a Story
Once you understand who your audience is, an effective appellate brief will make the case come alive to a person not immersed in the field of law or the situation out of which it arises. The facts and law should not be presented in a vacuum. The judges want a realistic understanding of your case. Narrative elements such as setting, character, and, most importantly, theme, should be woven into both the factual presentation and the legal argument. In telling the story of the case, appellate brief writers should think about the questions a lay person might ask, as a judge is likely to have the same or similar questions. If your brief has told a good story, supported by logical legal analysis, the court should know exactly what the client is asking for and why.
3. Don’t Be Afraid to Use Visual Aids
Effective appellate brief writers in the digital age take advantage of the old adage “a picture is worth a 1000 words,” by occasionally employing graphics, such as photographs, diagrams, maps, graphs, or other images, to illustrate a point. Not only does this break up the monotony of text on a page (or on a screen, as many judges are reading briefs on iPads or other tablets), but being able to see a case can really make it come alive for the court.
4. Be Concise
This is absolutely critical to effective appellate brief writing. A skilled brief writer is able to encapsulate an entire argument into a few short sentences. Your goal is to make it easy for the court to rule in your favor and presenting your case in a succinct and cogent manner allows the court to go through your analysis with minimal effort.
Do not waste the court’s time with unnecessary words. Delete information that the court does not need to know to decide the case.
5. Don’t Ignore Bad Facts or Law
As difficult as this may be, effective appellate brief writers must include a discussion of the strongest points you expect your opponent to make in his or her brief. Not only do you gain credibility with the court by approaching your case with candor, but your pre-emptive strike may take some of the wind out of your adversary’s sails or further damage their position. That said, while it is appropriate to put your own spin on your opponent’s argument, you must restrain the impulse to spin the facts in order to sway or convince. Instead, you must marshal your facts in a way that inexorably leads the reader to conclude that your client should win.
6. Know the Specific Relief You Are Seeking and Why Your Client Should Prevail
During oral argument appellate judges often ask attorneys, “what exactly does your client want from this case?” You must have a simple, real-life answer to this question, which should be evident from your brief. Indeed, it should be front and center in your Preliminary Statement. As stated above, judges are, for the most part, practical people who want to reach a sensible and reasonable result – at least in those cases not governed by clear statutory text or precedent. They want to feel good about ruling in your client’s favor. Your brief should make them want to rule in your client’s favor and provide ample justification for so doing.
“Generalist federal judges are unlikely to have the same level of understanding that you do of the particular industry, area of substantive law, or regulatory framework your case involves. ”
7. Avoid Using Jargon
As discussed above, generalist federal judges are unlikely to have the same level of understanding that you do of the particular industry, area of substantive law, or regulatory framework your case involves. With that in mind, business and technical jargon, as well as computerese and even legalese, should be avoided.
8. Don’t Beat Judges Over the Head with Statutory Language and Case Law
A tedious, repetitive brief becomes prone to skimming by judges. Avoid using meaningless string cites with little discussion of the specifics of the cases. Instead, present your three best cases with detailed analysis of their applicability. It is also important to refrain from, as Judge Posner put it, “exaggerating the cogency of reasoning by analogy” by trying to persuade the court to base its decision on a previous case, especially a case from another field of law. Instead, the brief should emphasize the decision’s reasoning and policies that bear on your case. This makes for a much more compelling approach.
9. Keep Footnotes to a Minimum
Because they can interrupt the flow of the brief and distract the reader from your argument, footnotes should be avoided unless absolutely necessary.
10. Edit, Then Edit Again
With the ultimate goal being a concise, organized appellate brief that tells a compelling story with a clear theme and minimal industry jargon, you must be merciless with your editing. Go through the “final” brief multiple times, and consider inviting a non-lawyer to review it as well. Eliminate rhetoric, hyperbole, and overstatement.
Brian Keller, an appellate attorney for the U.S. military, talks about “whittling” a brief to the point that every statement serves “as a small, incremental and sequential step towards the conclusion.” (Keller, Concise and Effective Appellate Briefs, The Journal of Appellate Practice and Process, Volume 14, Issue 2, Article 5 (2013)). Keller goes on to advise that appellate brief writers:
- Avoid the temptation to resolve all issues in one unbroken string of argument paragraphs. Instead, subdivide your argument into its constituent parts.
- Create descriptively named subheaders for each grouping of relevant facts and for each proposition of law.
- Maximize the possibility that the court will agree with ninety percent of your sub-propositions, rather than hoping and leaving it to chance that the judges will successfully spot, identify by name and relevant law, and later remember, the one issue that they agreed with, but that was buried deep in your prose and without any signposts or subheadings.
Let a Washington Appellate Lawyer Prepare a Persuasive Brief For You
If you are considering an appeal in Washington State, I welcome you to contact me. I have extensive experience handling appeals in state and federal courts throughout Washington State and can assist you in preparing an appeal following a loss at trial or on a dispositive motion. Call (509) 662-3685 for an appellate consultation.
The information contained in this blog post is provided for informational purposes only and should not be construed as legal advice on any matter.