Saturday, July 30, 2022
Writing an excellent appellate brief is an arduous task. The quality of your writing, coupled with how you organize and present your arguments, can make the difference between winning and losing. Below are a few tips that can enhance the persuasive value of your appellate brief.
1. Start strong and get to the point quickly.
Writing an appellate brief is, in many ways, like writing a fiction novel or directing a movie. Great books and movies begin powerfully, with a riveting opening chapter or scene. Likewise, in an appellate brief, you should begin with a persuasive introduction that captures the reader’s attention and that does the following:
- Tells the court in one sentence why you should win.
- States clearly what remedy you are seeking.
- Explains why the court should rule in your favor.
- Presents the strongest facts and legal authority that support your argument.
Drafting a powerful, persuasive, and concise introduction is your first – and often most important – opportunity to convince a court to rule in your favor.
2. Focus on the facts.
In most instances, the facts – not the law -- win cases.
An outstanding appellate brief, like a great fiction novel or academy award-winning movie, tells a compelling story. That story, among other things, is well-written, flows logically, keeps the reader’s attention, emphasizes the facts most favorable to your position, explains why unfavorable facts do not affect the outcome you seek, and demonstrates why a ruling in your favor is the fairest and most just result.
To be sure, laws, statutes, and constitutional provisions are often broadly worded and subject the different interpretations, and precedent is usually distinguishable. For example, determining whether a particular search is unreasonable under the Fourth Amendment, or whether a punishment is cruel and unusual under the Eighth Amendment, depends substantially on the court’s independent judgment and, to a lesser extent, subjective values.
As such, a court’s ruling is likely to turn on the facts of each case, which makes your statement of facts the most critical section of your brief. A powerful statement of facts, like a compelling introduction, can often determine your likelihood of winning.
3. Adopt a more objective tone.
Appellate judges understand that your job is to advocate zealously on your client’s behalf. The best advocacy, however, is often achieved by adopting a more objective tone that does the following:
- Confronts effectively and persuasively the weaknesses in your argument (e.g., by distinguishing unfavorable facts and precedent).
- Explains how a ruling in your favor will affect future cases and litigants.
- Considers the policy implications of a ruling in your favor.
- Addresses institutional considerations, such as how the public might react to a ruling in your favor.
- Acknowledges the merits of the adversary’s argument but explains why your argument produces the most desirable result.
Focusing on these issues will enhance your credibility with the court and demonstrate that you have fully considered the competing factual, legal, and policy aspects of your case.
4. Break the rules – sometimes.
When writing, rewriting, and revising your brief, do not focus exclusively or even predominantly on, for example, whether every sentence complies with the Texas Manual of Style, whether you have eliminated the passive voice, or whether you avoided using italics or bold.
Instead, focus on whether your story is compelling and consider whether your brief accomplishes the following goals, among others:
- Captures the reader’s attention from the beginning.
- Emphasizes the most favorable facts and law immediately and throughout the brief.
- Appeals to emotion where appropriate.
- Exposes the logical flaws in your adversary’s argument.
- Uses metaphors or other literary devices to enhance persuasion.
- Ends powerfully.
Sometimes, this requires you to break the rules. For example, assume that you are appealing a jury verdict against your client, a popular media personality, on the ground that one of the jurors lied on the jury questionnaire to conceal biases against your client. On appeal, you write the following:
During jury selection, potential jurors were asked whether they harbored any disdain for or bias toward my client, who is a controversial public figure due to his perceived conservative views. Juror No. 16, who was empaneled on the jury, stated that “I do not dislike or have any bias toward the defendant. I respect diverse points of view because they are important to ensuring the free exchange of ideas.” After the jury reached its verdict, however, an article on Juror No. 16’s blog surfaced that stated, “any conservative media commentator should burn in hell, and I would do anything to erase these people from the planet.” Additionally, one week after the verdict, when Juror No. 16 was questioned about this comment, he stated, “Look, I don’t give a s*** what people say about me. Sometimes, the ends justify the means, and I did what I did because people like that jerk need to be silenced.” Surely, Juror No 16’s first comment unquestionably supports overturning the jury’s verdict. But if there is any doubt, Juror No 16’s second comment was the straw that broke the camel’s back.
This is not perfect, of course, but you get the point. Sometimes, to maximize persuasion, you must break the rules.
5. Perception is reality – do not make mistakes that undermine your credibility.
Never make mistakes that suggest to the court that you lack credibility. This will occur if your brief contains the following mistakes, among others:
- Spelling errors
- Long sentences (i.e., over twenty-five words)
- Excessively long paragraphs (e.g., one paragraph occupying an entire page)
- Failure to comply with the local court rules
- Over-the-top language (e.g., unnecessary adjectives, insulting the lower court or adversary)
- Inappropriate language (e.g., “the respondent’s arguments are ridiculous and stupid”)
- Fancy or esoteric words (e.g., “the appellant’s meretricious argument ipso facto exacerbates what is an already sophomoric and soporific argument that, inter alia, manifests a duplicitous attempt to obfuscate the apposite issues.”) This sentence is so bad that writing something like this in a brief should be a criminal offense.
- Avoiding unfavorable facts or law
- Requesting relief that the court is not empowered to grant
- Including irrelevant facts or law in your brief (and including unnecessary string cites)
Avoid making these and other mistakes at all costs.
6. The law will only get you so far; convince the court that it is doing the right thing by ruling for you.
Ask yourself whether your argument produces the fairest and most just result. Judges are human beings. They want to do the right thing. They do not go to sleep at night saying, “I feel so good about my decision today because I made sure that we executed an innocent person.” Put simply, judging is both a legal and moral endeavor. As such, convince a judge that the result you seek is the right result as a matter of law and justice.