Written by Michael Skotnicki, OLN Freelance Attorney.
Writing appellate briefs isn’t easy because you have to encapsulate your entire case within a relatively small number of pages and have to do so for someone who knows nothing about it before he or she starts reading the brief. Moreover, it has to be well written enough to keep the reader turning the pages instead of putting the brief down in favor of the opposing party’s brief.
The problem for many lawyers who don’t handle appeals very often is that they use the same style and use the same techniques in writing an appellate brief as they do in writing trial court briefs. Another possibility is that they think that because their brief is now being filed with a higher court, they have to adopt a more intellectual approach to their writing. A third problem is just that they don’t really know how to piece together the various components of an appellate brief into a cohesive package that presents their case. Many times, trial lawyers suffer from an unawareness that they don’t have the knowledge, experience, or talent to write a compelling and persuasive appellate brief.
So you can you diagnose this problem? I’ve put together a list of 5 signs or symptoms of a lawyer who needs help writing his or her appeal brief and ought to contact a freelance appellate specialist for assistance. Of course, there are many more symptoms than just these.
1. You think using phrases like “assuming arguendo” and other legalese improves your legal writing and impresses judges. It doesn’t. It just makes you write more like a lawyer when you should be writing like a novelist.
2. The idea of using charts, tables, diagrams, or photos in the brief itself is something that has never occurred to you. If so, you’re not alone. While narrative discussion is a great way to present information, it isn’t always the best or it can at least be supported by use of these other methods. Not everyone learns best by reading and presenting information in different formats reinforces the information and makes it more memorable.
3. You think the brief should just include the “most important” facts and that if you put in too many facts you’ll just bore the judges. Facts don’t bore readers; poor writing does. Facts, both those most important and those that provide context, tell a story. The brief writer controls whether or not that story maintains the reader’s attention. Prior to being appointed U.S. Supreme Court Chief Justice, John Roberts was known as a great appellate writer. In his brief filed with the Supreme Court in Alaska v. E.P.A., a Clean Air Act case, he set the backdrop for his argument by telling the story of how the “Red Dog Mine” was named after the Irish Setter owned by a pilot who believed he recognized mineral exposures as he was flying overhead. Don’t think small facts are unimportant; every piece of the puzzle has some importance.
4. You think a reasonable way to get a lengthy brief to meet the page limitations is to cut text from the double-spaced narrative and put it in single-space footnotes. This thinking fails to examine the important question of why the brief is so long. Is it because the issues of the appeal simply require lengthy discussion, or is it because the writer cannot write concisely and hasn’t thought through how to present the argument of the brief in a clear way. One rule of thumb in writing is that if it takes a long time to express an idea, the idea isn’t very good. So, think again, get a better idea, and your writing should be more concise.
5. You think the key to having a winning appeal is finding the right precedent, the case that is directly on point and will control the result. If you think this, you forget that unlike trial court judges, who are to some degree constrained by precedent, appellate judges have the authority to make new case law if they choose. You also fail to realize that it’s not the most persuasive argument to simply suggest a court should rule a certain way simply because it did so years or decades before when faced with a similar question and similar facts. Instead, focus on the policy reasons for the court’s earlier ruling or the problems cased if the court were to now reach a different result.
If you feel you may need help with writing an appellate brief, feel free to contact me through Overflow Legal Network LLC.