Monday, March 1, 2021
I am in the middle of grading draft arguments for my students' appellate briefs, so the task of structuring an appellate brief is certainly on my mind. The most recent issue of The Journal of Appellate Practice and Process contains an excellent article by attorney Thomas L. Hudson on that very topic. Thom is a partner at Phoenix firm Osborne Maledon. He is a noted appellate law expert in the state and a graduate of the University of Arizona James E. Rogers College of Law. We were certainly thrilled to publish an article from an alum in our first issue.
Thom starts from the premise that, "perhaps due to their length, structure becomes particularly important. A well-structured brief will stand out, and a poorly organized brief may cause the reader to gloss through it or put it down." He then proceeds to look at five key sections of the brief and how they can be persuasively structured: the introduction, the statement of the facts and procedural history, the argument section, the reply brief, and the conclusion.
While I commend the whole article to you, I want to focus on his advice for the argument section, since that is what is on my mind as I grade papers. Thom does a great job explaining how the appellant's opening brief should consider arguments that opposing party may make and deal with the contrary opinion below. He rightly notes that an opening brief should lead from strength. The advocate should "start by convincing the court that your position is legally correct, and after doing so then discuss why the trial court got it wrong." As he explains on p. 91-92:
This means that for each issue or sub-issue, you should start the opening brief argument section with the legal principles relevant to the issue. Here, help the reader understand the law necessary to decide the case. After establishing the relevant legal principles, the brief should then explain how these legal principles apply to the facts of the case. If you are the appellant and you have decided to pursue an appeal, the conclusion must be that your client prevails under the relevant law and facts. In other words, make the positive case for why you should win first.
After you have made your positive case, then demonstrate how and why the lower court erred. Here, think about your battleground points, and ideally keep them on the de novo side of the standard of review ledger. Note too that by the time you get to this point, much of the work may already be done. If, for example, the error lies in misapplying the correct state’s law, you can draw on your prior positive case to tee up the rebuttal: “Instead of applying the Kansas rule as required by the governing choice of law rules, the district court looked to Missouri law. It did so because it mistakenly believed . . . .”
He notes that this second step, the analysis of the ruling below, is where the advocate should also deal with the points opposing counsel made below. Thom helpfully includes a sample structure of the point headings to demonstrate this point.
Thom argues that the appellee's brief should follow the same format--first setting out the affirmative case before "debunking your opponent's arguments." He likewise includes a sample structure for the readers to follow along.
Thom's advice is so on point that I am sharing it with my students as they work on their briefs. It can be hard to conceptualize argument structure, and Thom's clear guidance will make any brief-writer's job just a little easier.