Appellate Advocacy Blog

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

Thursday, June 16, 2022

Seizing Control of Your Argument

When writing an appellate brief, an advocate has the one true opportunity to seize control of the argument (unlike during oral argument, which often is hijacked by a judge). Don't waste this opportunity to tell the appellate court exactly what it should do and why it should do it. There are ways to make the argument yours, steering it in the direction you want the court to go.

I often find that law students writing appellate briefs for the first time are hesitant to seize control of their argument. They frequently lack confidence because they are inexperienced and feel they lack sufficient knowledge to tell the court what the law is and how it should rule.

Of course, nothing makes up for experience and knowledge. Even attorneys with experience and knowledge, though, have problems with persuasive writing. Being persuasive is about making your argument with confidence, and as someone once said: you don't have confidence; you do confidence.

It goes without saying that a good appellate advocate must know the facts of the case and the law that applies to the case inside and out. That obviously is a good start. But what can a appellate advocate do to ensure that the document is a persuasive appellate brief and not an objective essay or law review article? Well, there are a few tools and strategies that all good appellate advocates should think about using but often don't.

  • Use favorable facts in the Questions Presented to make them persuasive. This preliminary portion of an appellate brief often is overlooked. And advocates frequently include no facts in them even though that is what often makes or breaks an argument. Even appellees usually can use facts to frame the questions in a way that favors their position.
  • Make sure to write a persuasive--but honest and accurate--Statement of the Facts. The fact statement should tell a story, not recite testimony. A good appellate advocate can tell a story in such a way that the reader wants to rule for that advocate's client before even reading the actual legal argument. Emphasize the good facts by placing them in places of importance in the story. And don't forget to include favorable background facts, even if they aren't outcome determinative, if they can contribute to the overall pathos of your brief. While you can't leave out relevant facts that are bad for your position, there are ways to downplay them (for instance, burying them in the middle of a paragraph or using passive voice in stating them).
  • Start each main argument section with an introductory paragraph that includes your thesis for that section--what is your contention? Put this in definitive and assertive terms.
  • Write general rules--if possible--in a way that favors your client. Some advocates consider general rules as neutral statements that set up the persuasive argument but aren't really part of it. However, this portion of the argument should not be ignored. If there is a way to state a general rule that is positive for your side--but, of course, still accurate--don't be afraid to state it that way.
  • Use topic sentences. This particularly is important when using a case to illustrate a rule. Why let the reader decide what he or she thinks about the case you are discussing? Tell the reader upfront what the case means before describing its facts and holding. In many ways, this topic sentence will be like a sub-rule inferred from the case. Make sure to not use a general rule you already have stated as your topic sentence; make it is something new and more specific than the general rules.
  • Include strong concluding paragraphs in each section of your argument. This is the opportunity to again state your ultimate thesis, and it never hurts to tell the reader again.
  • Don't be afraid to tell the appellate court what it should do. For whatever reason, the word should usually is assertive enough without going over the line. Many, if not most advocates, would not go so far as to tell a court what it must do.

Seizing control of the argument in a brief means making it easier for the reader to understand your position and to believe it is the only right position. Your argument will be easier to understand and more convincing if you use various persuasive tools and strategies like the ones set out above.

https://lawprofessors.typepad.com/appellate_advocacy/2022/06/seizing-control-of-your-argument.html

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