Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Saturday, October 31, 2015

The Importance of Following the Rules

I am constantly stressing to my appellate advocacy students the importance of not just excellent substance in their briefs, but also the importance of complying with the court’s technical rules.  There is nothing more frustrating as a legal writing professor than reading a brief that makes great legal arguments, but is so poorly formatted that the substance is lost in the technical errors. 

A few days ago one of my students sent me a post by Casey C. Sullivan on FindLaw’s Strategist Blog about an attorney in Indiana who requested permission to file a corrected Table of Contents and Table of Authorities in a case before the Court of Appeals of Indiana.  The court granted the request, but directed that “[n]o substantive changes . . . be made to the Amended Appellant’s Brief.”

According to the court’s opinion the new Table of Contents represented “at best, an abject failure to understand the most basic requirements of appellate briefing.”  The attorney expanded the one-page Table of Contents in her first brief to a whopping thirty-seven pages in the amended brief.  The Table of Authorities was expanded from four to eleven pages.  The court’s opinion contains a few snippets from both tables including this gem from the Table of Authorities:

Hirsch v. Merchants Nat’l Bank & Trust Co. of Indiana, 336 N.E.2d 833 (Ind. Ct. App. 1975) (providing eight percent interest in action for breach of lease).  When the parties’ contract does not provide an interest rate; therefore, the statutory interest rate of eight percent is applicable.  (cited in App. 75-76) [appearing on page] 12

Unfortunately for the attorney, not even the page number in this entry was correct, as page 12 of the brief contained no case citations at all and was actually part of the Statement of Facts.  According to the court, “the Table of Authorities fail[ed] at its basic and only purpose of informing us of the cases cited in the brief and directing us to where in the brief a particular case is discussed.”

The attorney’s failure to follow the rules came at a steep price—the court disregarded the entirety of both Tables—proving once again that formatting matters!

 

October 31, 2015 in Appellate Advocacy, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Thursday, October 15, 2015

A Handful of Links to Tips and Thoughts on Appellate Brief Writing

With the Supreme Court’s new term now underway, there is likely to soon be much to discuss in the world of appellate advocacy and developments from cases heard by the Court.  In the interim, I thought I’d share a handful of links for those who are in practice or in law school settings, working on drafting an appellate brief, and looking for some little tidbits concerning ways to maximize effectiveness.  The following links cover a wide range of brief-writing topics and perusing them might offer some new thoughts or perspectives to increase your overall impact.

 Overview of Each Section:

The Duke Law School has a helpful guide to appellate advocacy on its website that includes a table of contents and then individual sections addressing various parts of an appellate brief, including the Question Presented, the Tables, the Statement of the Case, the Argument, and the Conclusion: 

Duke Law School Guide

 Finding Your Appellate Voice:

Noted appellate advocacy blogger Howard Bashman of How Appealing presented “Finding the Appellate Style and Voice That Works Best for You” back in September at The Legal Intelligencer: 

Bashman on Style and Voice

 Some Tips Regarding Your Statement of the Case / Fact Section:

Stephen V. Armstrong (Director of career Development at Wilmer, Cutler & Pickering, an international firm based in Washington, D.C. and former Director of Professional Development and Training at Paul, Weiss, Rifkind, Wharton & Garrison, a law firm based in New York City)  and Timothy P. Terrell (Professor of Law at Emory University in Atlanta, Georgia, and former Director of Professional Development a the law firm of King & Spaulding in Atlanta) present tips on “Organizing Facts to Tell Stories” in the  Winter 2001 edition of Perspectives

Armstrong & Terrell on Organizing Facts

Palmer Gene Vance II and Madonna E. Schueler (both of the firm of Stoll Keenon Ogden PLLC in Lexington, Kentucky) present “Ten Tips for Developing Your Case Theme” in the September/October edition of GPSolo, a publication of the American Bar Association: 

Vance II and Schueler on Case Theme

 Standard of Review:

Mike Skotnicki, an appellate attorney in Alabama, presented “The Standard of Review is the Lens Through Which You View Your Facts and Issues” on his appellate practice blog, Briefly Writing, back in January 2012: 

Briefly Writing: Standard of Review

 Point Headings:

Bryan Garner discussed the value of effective point headings in the September edition of Bryan Garner on Words at the ABA Journal: 

Garner on Point Headings

 Paragraph and Sentence Structure:

Mike Skotnicki presented “Borrowing a Fiction Writing Technique: Using Pacing by Paragraph and Sentence Length to Build to a Conclusion” on his appellate practice blog, Briefly Writing, back in March 2012: 

Briefly Writing: Pacing by Paragraph and Sentence

 Raymond Ward, an appellate lawyer in New Orleans,  linked to articles by Stephen V. Armstrong and Timothy P. Terrell from recent issues of Perspectives, concerning “Lessons in Paragraph Building” on his blog, the (new) legal writer

Ward: Armstrong and Terrell on Paragraph Building

 Editing to Meet Page Limits:

Lady (Legal) Writer presented a blog entry in September about “Editing to Meet Page Limits”: 

Lady (Legal) Writer on Editing to Meet Page Limits

 

If you have links to articles, blog posts, or other resources that you’ve found to be useful with tips and thoughts on ways to improve appellate brief writing, share them in the comments!

October 15, 2015 in Appellate Advocacy, Appellate Practice, Legal Writing | Permalink | Comments (2)