Article by Holly Olarczuk-Smith, Esq.
While there are several steps involved in presenting a successful case on appeal, crafting the appellate brief is unquestionably one of the most—if not the most—important. The briefs are the appellate court’s first introduction to the case, and cases truly can be won and lost at the briefing stage.
As Professor John D. Feerick explained in his seminal article, Writing Like a Lawyer, 21 Fordham Urb. L.J. 381, 383-384 (1994):
“Bad legal writing can result in increased legal fees for clients, detrimental reliance by citizens, thousands of hours of court resolution, loss of integrity for our legal institutions, and a disrespect for law and lawyers. Lawyers who do not write clearly also leave themselves open to malpractice or disciplinary proceedings for, among other things, misleading or failing to inform clients.”
So, what does it take to write an effective appellate brief? Along with articles like Writing Like a Lawyer, there are entire textbooks devoted to this subject. Writing well requires practice, patience, research skills, attention to detail, and mentorship. With this in mind, we humbly offer these 10 tips for writing an effective appellate brief based on our own personal experience:
1. Focus on Your First Impression
When writing an appellate brief, your first impression matters. The introduction to your appellate brief should be clear and concise, and it should focus on educating the court rather than criticizing the trial judge.
2. Do Not “Save the Best” for Your Oral Argument
Too often, appellate lawyers use their briefs as precursors to their oral arguments. An appellate brief should not set the stage—it should be the stage. If your brief doesn’t hold weight on its own, you might not get the chance to present your oral arguments. At the federal level, for example, “[m]ore than 80 percent of federal appeals are decided solely on the basis of written briefs.”
3. Less is More
Appellate judges spend lots of time reading briefs. When it comes to verbosity and unnecessary prose, they’ve seen it all. If your brief is concise, it will stand out for the right reasons. Spend time revising your brief so that it says what is necessary—nothing more and nothing less—and your brief will stand head and shoulders above the rest of the crowd.
4. Use Headings and Subheadings to Create a Roadmap
Headings and subheadings can be highly effective when it comes to organizing an appellate brief and providing the court with a roadmap to follow. But, you need to word your headings and subheadings carefully; and, if you create them based on your initial outline, you must remember to revise them as your brief evolves.
5. Write Your Introduction Last
The introduction to an appellate brief should reflect its contents. As a result, it is generally best to write your introduction last. Otherwise, it may meander aimlessly, and you may end up writing it again once you realize that your first attempt doesn’t serve its intended purpose of leading the court into your arguments.
6. Focus on the Basics
This applies to all aspects of writing an appellate brief—from the quality of your writing to the substance of what you ultimately file with the court. Make sure you use proper grammar and punctuation, make sure your citations to the record are correct, and make sure your facts are both relevant and accurate.
7. Focus on Your Strongest Argument(s)
Only in rare circumstances will the “kitchen sink” or “shotgun” approach be the best option at the appellate level. Generally speaking, when crafting appellate briefs, appellate lawyers should focus on their strongest arguments—three or four total in most cases. Start with your strongest argument. If it isn’t enough to carry the day, make sure you know why, and then supplement with additional arguments only as necessary.
8. Identify and Address the Applicable Standard of Review
For each argument you include in your appellate brief, you should include a discussion of the applicable standard of review. Why does the standard apply? How does it apply? Why does applying this standard necessitate a ruling in your client’s favor?
9. Revise, Revise, Revise
Your first draft is just that—a draft. Crafting an appellate brief takes time, and you should budget time for multiple rounds of revision. When revising, focus on specific issues each round (i.e., the accuracy of your factual recitations, the efficacy of your legal arguments, copyediting, and proofreading), and don’t be shy about having your colleagues provide their input once you think you have a final product.
10. Don’t Overuse Footnotes
Finally, when writing an appellate brief, it is important not to rely too heavily on footnotes. Generally speaking, if something isn’t worth including in the main text of your brief, then it probably isn’t worth including in a footnote, either. If something is relevant but doesn’t fit within your brief’s organizational structure, then revise so that it does. Not only will long footnotes often go unread, but excessive reliance on footnotes can also cause a brief to be stricken.