Advice on Writing Appellate Briefs

Recently, the Hon. Victoria A. Graffeo and Lana Ivy presented a webinar “Why It Is Advantageous to Use Appellate Attorneys for Cases on Appeal” hosted by The Knowledge Group. From the Harris Beach firm blog, here are their critical pieces of advice:

Select the Best Arguments: It is important to select the points (usually no more than three) that are most likely to resonate with the judges. Too many issues will weaken your case and potentially lead to questioning that will waste your precious oral argument minutes.

Develop a Theme: Develop a theme that will be of interest to the particular court handling your case. If it is the State’s highest court, think about the policy ramifications of your client’s position. Such courts are not solely interested in the resolution of your case; they are concerned with how the rule in your case will affect future similar cases.

Focus on Policy Issues: Experienced appellate attorneys know to take a broad view of the issues being raised in order to present the issues and the outcome you are advocating in the most persuasive way to the court.

Format for Cases: Avoid the use of long string cites in briefs that break the flow for the reader. If there are several important cases relevant to your point, discuss them in sentence form.

Know the Record: Study the record and keep a list of pertinent record references. Judges will test your knowledge of the record and will expect you to give them specific record references in support of your contentions.

Think, Then Respond: Do not repeat a judge’s question as part of your answer; better to take a second or two to gather your thoughts than to parrot back the inquiry.

Answer Immediately When Asked: Always answer the question presented; do not indicate that you will get to that point later in your argument because you will most likely not reach it and you might alienate that judge.

Keep Your Audience in Mind as You Draft an Appellate Brief: At the trial court level, the brief may not be the heart of your submission. At the appellate level, it is your entire submission.  Keep procedural history as simple as possible, and focus on your strongest points. The kitchen sink approach is not a good strategy at the appellate level. Use the correct standard of review and keep the hierarchy of case law in mind. Trial court decisions are generally not very compelling to appellate courts.

Rework The Statement of Facts From the Briefs Below: Do not make the mistake of copying the Statement of Facts from the trial court brief. Include only facts pertinent to the issues on appeal: if the issue is whether a piece of evidence is admissible, the procedure is more important; if the issue is whether there is a question of fact, then facts are more important. Omit dates that are not relevant.  Accurately cite to the record. Use the Statement of Facts as an opportunity to shape the story. Keep the Statement of Facts brief and interesting: do not get bogged down in technical jargon and details that are not relevant.

Questions Presented: This is an important section for both Appellant and Respondent – take your time writing it. Do not pass up the opportunity to present your case rather than just stating the issues. Get your audience agreeing with you early. Questions Presented should track your points in the argument section. No Questions Presented are usually required in reply briefs.

Argument: Cite relevant authorities. Argue why the court should reverse or affirm under the pertinent standard, not just why the trial court was right or wrong. Why is it important? What precedent does it set if the Court doesn’t do what you ask? What are the public policy implications?

(ljs)