Sunday, February 2, 2020
When drafting an appellate brief, your goal should be to produce a well-written document that maximizes the persuasive value of your arguments. In so doing, be sure to avoid the following mistakes.
1. You fail to follow the local court rules
The local court rules typically contain requirements regarding, among other things, the cover of your brief, the word count, spacing, font size, and font type. Failing to follow the local court rules demonstrates a lack of diligence and respect for the court, and undermines the credibility of your arguments.
2. You seek a remedy that is outside of the court’s authority
When drafting your arguments, do not seek a remedy that the court is not authorized to provide (or include information that is not included in the record below).
Consider this example. You represent a state that recently enacted a statute outlawing all abortions and the American Civil Liberties Union challenges the statute’s constitutionality. A district court holds that the statute violates the United States Supreme Court’s decision in Roe v. Wade, which held that the Due Process Clause of the Fourteenth Amendment encompasses a right, in some instances, to terminate a pregnancy.
You decide to appeal the court’s ruling and, in your brief, you argue that Roe v. Wade was wrongly decided, that the appellate court should overrule Roe, and that the statute should be upheld. However, the appellate court lacks the authority to overturn precedent from the U.S. Supreme Court and, as such, your argument will be rejected.
Additionally, you should not make arguments based on facts that are not included in the record below or that were not preserved in the lower court.
3. You overstate the relevance of precedent
Although it is vital to address favorable and unfavorable precedent in your brief, you should never overstate the relevance of favorable precedent. Specifically, do not represent that the facts of a prior case are “strikingly similar” if they are not and do not mischaracterize a prior holding to provide support for your position. The court (and your adversary) will almost certainly notice this error and your credibility, along with your client’s chances of success, will diminish substantially.
Instead, you should explain why precedent, although distinguishable, nonetheless supports the remedy you seek.
4. You are not direct with the court
Appellate judges are extremely busy and read thousands of briefs. Thus, make sure that you present the legal issues and relevant arguments in a direct, understandable, and honest manner. Specifically, at the beginning of your brief, be sure to do the following:
- Identify the errors in the lower court’s decision
- State the remedy that you would like the court to provide
- Explain why you are entitled to this remedy
- Briefly provide the facts and relevant law that support your position
If an appellate court struggles to identify the relevant facts and arguments in your brief, the judges will not view you – or your arguments – favorably.
5. You do not consider the relevant standard of review
Appellate courts decide cases using specific standards of review. For example, appellate courts apply the “abuse of discretion” standard when reviewing factual issues, in which the courts defer substantially to the lower court’s findings. When reviewing legal questions, however, appellate courts apply the “de novo” standard of review, in which the courts give no deference to the lower court’s findings.
Thus, your arguments should be drafted in light of the applicable standard of review, and you should explain in detail and with specificity why your arguments, under the relevant standard, support the relief you seek.
6. You do not organize your brief effectively
Your goal should be to draft a brief that is readable, understandable, and easy to follow. A well-organized brief typically includes the following:
- Headings and subheadings that are rarely, if ever, longer than one sentence
- A roadmap at the beginning of the brief, in which you outline your arguments and state the order in which they will be presented
- Paragraphs that only discuss a single point or issue and that always begin with a topic sentence
If your brief is not organized effectively, you will diminish the persuasive value of your arguments (and you will probably annoy the judges).
7. You file an unnecessarily lengthy brief
Given that appellate judges are very busy and read thousands of briefs, you should make sure that your brief is as concise as possible. Unnecessarily lengthy briefs will likely annoy the judges, distract the judges from the substance of your arguments, and reduce the persuasive value of your brief. Thus, when drafting your brief, be sure to omit excess words, unnecessary facts, and irrelevant legal arguments.
Simply put, less is often more.
8. You make basic writing or stylistic errors
Your brief should not contain errors that cast doubt on the quality of your writing or your competence as an attorney. For example, do not:
- Use over-the-top language (e.g., don’t say “The court’s decision in the prior case made no sense and was utterly devoid of even the semblance of reasoned legal analysis,” or “The defendant’s arguments are ridiculous and not even worthy of a response”)
- Use block quotes unless absolutely necessary
- Include overly long paragraphs
- Repeat arguments
- Use complex or esoteric words
Ultimately, to ensure that your brief is of the highest quality – and avoids these mistakes – be sure to rewrite and edit your brief, and proofread it on paper.