Monday, July 21, 2014

A Rookie Judge’s Guide to Writing Appellate Briefs

From the ABA blog (abridged):

Samuel A. Thumma joined the Arizona Court of Appeals after 20 years in private practice and as a trial judge. Based on his rookie year as an appellate judge, Thumma offers suggestions for “the nearly rule-less” practice of writing appellate decisions in an article for the winter 2014 issue of The Judges’ Journal. Some highlights:

Keep the audience in mind. Any appellate decision should have as the primary audience the parties and their counsel, although with a decision that can be cited as a precedent, the audience is broader and more diverse.

Your introduction matters. Grab the reader with a short, tight, clean introduction.

Create structure with headings. In most cases, Thumma uses these headers:  Introduction, Facts and Procedural Background, Discussion, Attorneys’ Fees (if applicable) and Conclusion. In multi-issue appeals, adding sub-headings can provide further clarity.

Less is more. Details should be essential or omitted.

Confirm proper jurisdiction. Ask yourself: What appealable judgment or order was appealed, how is the appeal timely, and how did the court have appellate jurisdiction?

Specify the standard of review and how facts are construed, as it may be important for deciding the case, but for a decision that can be cited as a precedent, in determining how the case may be cited.

Address or at least mention the fair issues raised in the briefs. For non-precedential decisions, noting all issues raised by the parties is critical for perceptions of legitimacy and to minimize motions to reconsider. For a precedential decision, it may be helpful for future cases to note what was raised but not addressed or decided.

Clearly specify the relief granted.

Avoid unintended consequences. Clarity and brevity decrease the chances that the decision will be used inappropriately as a precedent in a case with different facts or legal arguments.

Develop your own writing style and preferences. For example, if you don’t like the morass of long, complicated sentences common to legal writing, vary your sentence length.

At the top of a list of Thumma’s personal writing preferences: “I assume no one reads footnotes.”

You can read the full posting here


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