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Appellate Advocacy: 5 Keys to Developing Persuasive Briefs & Oral Arguments

Article by Holly Olarczuk-Smith, Esq.

Representing a client on appeal is wholly unlike representing a client at trial. Effective appellate advocacy requires a different set of skills and a different mindset, and it requires intimate familiarity with the presiding court’s rules of practice.

Entire books have been devoted to the subject of effective appellate advocacy, including books dedicated to the separate disciplines of writing persuasive appellate briefs and presenting persuasive oral arguments in the appellate courts. With this in mind, here are five keys to effective written and oral advocacy that our attorneys have identified over decades of appellate practice:

Key #1: Understand the Value of the Written Brief and Oral Argument

Appellate lawyers need to understand the value of the written brief and oral argument. Each of these forms of communicating with the court presents different opportunities, and understanding how to maximize these opportunities is critical for effective representation.
While many appellate lawyers focus on honing their oral presentations, the written brief is more important in many respects. The written brief provides the court with its first impression of the case, and a well-written brief will educate the court on the relevant issues—anticipating potential questions and avoiding confusion. In contrast, the oral presentation should be formulated to facilitate a conversation with the court. At oral argument, appellate counsel should expect dialogue and be prepared to answer questions without referring to notes or source materials.

Key #2: Understand the Consequences of Poor Legal Writing

The ability to communicate effectively in writing is a key skill for appellate lawyers. Appellate cases can be won or lost on the brief. Even if the law is on the client’s side, a poorly-written brief can result in a loss on appeal. While sentence structure, grammar, and punctuation might seem to take a back seat to the substance of an appellate brief, this is not necessarily the case. If an appellate brief is poorly drafted, the substance will get lost in translation.

Key #3: Be Brief – Less is More

In both written and oral appellate advocacy, brevity creates impact. Appellate lawyers should craft concise arguments, and they should quickly get to the point. With the exception of summarizing the client’s position in the introduction and conclusion, there is no reason for redundancy; and, while appellate lawyers must confront any adverse legal authority, they should not dwell on demonstrating the adverse authority’s irrelevance.

Key #4: Be Organized – Structure is Important

Appellate briefs and oral arguments should serve as roadmaps toward appellate counsel’s desired holding. They should be well-organized with clearly defined sections. In written briefs, appellate lawyers should use headings, paragraph structure, and sentence structure to keep the court’s attention and drive home their key points. In the courtroom, appellate lawyers should use their oral advocacy skills to succinctly explain why the circumstances of the case dictate one particular outcome.

Key #5: Observe the Requisite Formalities

Finally, when writing their briefs and preparing their oral arguments, appellate lawyers must observe the requisite formalities. This includes everything from using proper citation formats to knowing how to address the members of the court. Appellate lawyers need their briefs and oral arguments to stand out for the right reasons. Anything that detracts from the quality of a brief or oral argument is not only unnecessary, but it also presents unnecessary risks for both lawyer and client:

“Lawyers who do not write clearly . . . leave themselves open to malpractice or disciplinary proceedings for, among other things, misleading or failing to inform clients.” John D. Feerick, Writing Like a Lawyer, (1994), 21 Fordham Urb. L.J. 381, 383-384.

The lawyers in Burns White’s Appellate Practice Group represent clients in state and federal appeals in all of our firm’s substantive areas of practice.