"Appellate Briefs-One Judge's View of the Good, the Bad, and the Ugly-Part Two"

Last month’s post examined the “pet peeves” most frequently cited by my colleagues, mentors, and judicial attorney staff. I promised to provide positive tips in the second installment of “Appellate Briefs-One Judge’s View of the Good, the Bad, and the Ugly.”  Some are universal; some are more controversial. Some are designed to make your writing more memorable and persuasive; some are designed to assist those who learn differently. All are designed to put your case in its best light.

Now for Part Two-The Tips:

1. Argue the “deep issue.” Ohio’s Ninth Appellate District sets out an excellent description of the “deep issue” in its Local Rules, Appendix B, citing Bryan Gardner’s Elements of Legal Style. ^[i] In summary, the “Statement of Issues Presented” should be in three sentences. The first sentence should be the legal premise. The second should be the facts demonstrating why the legal premise is applicable in this case, and the third sentence should close with a question that does not begin with the word “whether.” Here is an example.

 “The excited utterance exception allows a declarant’s statement to be admitted if it is made under the stress of a startling event. Officer Johnson testified that he talked to Smith 30 minutes after Smith had made a 911 call reporting that he had been assaulted. Smith told Officer Johnson, ‘Bob hit me with a baseball bat.’ Was Officer Johnson’s testimony repeating what Smith told him admissible as an excited utterance?” Your brief will then support the answer you want the judge to give.

2. Avoid dramatic words such as “clearly”, “patently”, “obviously”- they signal your weakest points.
3. Do not use exclamation points.

1. Proof, proof, proof. I admit to being a terrible proofreader of my own writing. If you do not have help, I find reading the copy out loud helps because you slow down and your brain will catch errors.
2. Use shorter sentences, avoid unnecessary adjectives and adverbs, and edit-

preferably have someone else edit as well.

1. Try to avoid “wordy” phrases. For example, change “a number of” to “many.” Here is a list of substitutes: https://www.dailywritingtips.com/50-plain-language-substitutions-for-wordy-phrases/
2. Tell your story because the facts may just win the case for you but choose your facts wisely and carefully place your “bad” facts amid a longer sentence.
3. Tell your story using the people in your case and choose words that create a picture- “tears” rather than “sad.”
4. Avoid using “plaintiff”, “defendant”, “appellant”, “appellee” or acronyms that are not obvious-use the parties’ names.
5. Provide the reader with a “road map”- Tell the reader what they are about to read and why it will be important.
6. Use headings and sub-topic headings to guide your reader through the different levels of information and argument and to show relationships. This is particularly helpful to the screen reader.

In my first installment, I encouraged you to read “Legal Writing for the Rewired Brain” by Robert Dubose.^[ii]  Brief writing needs to evolve since more judges are reading on screens rather than paper.

Screen readers are more likely to do four things: one, look for headings and summaries; two, read the first paragraph of the text more thoroughly than the balance; third, read the first paragraph of the text more thoroughly than the balance; and forth, look for “structural clues” down the left side of the page (think-website site design, with a list on the right side of the page.

Here are visual examples:

The first is a Statement of the Case section of an appellate brief, which recognizes readers want information quickly and might scan.

The second example uses headings and incorpoates graphics where appropriate to help the reader understand and to break up the text.

The third helps those who are “visual learners.” Here a critical document is scanned into the brief. This also works well for diagrams of a product or a site map.

1. Think about when to use an active v. passive voice - “Jane threw the ball” vs. “The ball was thrown by Jane.”
2. In civil tort cases, active is good for the plaintiff and passive is good for the defense. For example, “Jane Smith was hurled into the air when Mr. Smith hit her in the intersection” v. “the pedestrian was struck in the intersection.”
3. Passive voice in criminal cases will help put some distance between the actor and the act. For example, “The gun was fired” v. “Smith fired the gun.”

Brief writing is a process of forming separate arguments, creating an outline of the substantive and procedural facts and the law for each argument, drafting and then then refining each section to evaluate what works and what cannot be supported, and then editing until polished (and in compliance with local rules of court).

D.C. Circuit Judge E. Barrett Prettyman said, “The Lawyer’s greatest weapon is clarity, and its whetstone is succinctness,” but Justice Ruth Bader Ginsburg phrased it even better- “Get it right and keep it tight.”

 

[i] http://www.ninth.courts.state.oh.us/Rules/2022%20Local%20Rules.pdf

[ii] Legal-Writing-for-the-Rewired-Brain.pdf