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Preparing to Write an Appellate Brief

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Preparing to Write an Appellate Brief PREPARING TO WRITE AN APPELLATE BRIEF by Raymond P. Ward uccessful advocacy depends on stantially reducing the time spent editing Services pamphlet or call DRI for de- hard work and preparation. This and rewriting. tails.) Also, your law firm may have its Struism applies not only in the own brief bank. Talk to your librarian or trial court, but also in the appellate court. OBTAIN AND REVIEW CURRENT other person responsible for maintaining The most important tool for persuading COPIES OF ALL APPLICABLE the brief bank. Reading a brief that cov- appellate judges is the brief. An appellate STATUTES AND RULES GOVERNING ers an issue in your case will help orient advocate cannot write a persuasive brief APPELLATE PROCEDURE you on the law, and may save you some without thorough preparation, any more time on legal research. than a trial lawyer can give a persuasive Early in the process, obtain and review closing argument without thorough current copies of all applicable statutes GET THE RECORD preparation. The purpose of this article is and rules governing appellate procedure. to describe a stcp-by-step method for Don't assume that you already know the Borrow a copy of the record on appeal preparing to write an appellate brief—a rules because you handled an appeal in from the clerk of court as soon as it be- method that has proven successful to the same court last year. Rules change. If comes available, including the trial exhib- other appellate practitioners. Writing an you are in federal court, review the Fed- its. Make a copy for yourself; you cannot appellate brief can be a daunting task, I eral Rules of Appellate Procedure, the ap- be sure that the record will still be avail- hope that this article will provide a plicable local rules, and any internal able when you need it down the road. roadmap of specific, concrete steps that operating procedures or other materials can be taken to get a handle on the that tell you how the court operates. If STUDY THE RECORD project. This article is written from the you are in state court, review the corre- Studying the record is absolutely vital perspective of the appellant. However, sponding state appellate court rules. The even if you were trial counsel. Do not de- most of these steps will benefit the appel- purposes of this step are (1) to avoid mal- pend on your memory of what happened lee as well. practice, and (2) to know what the court at trial. Human memory is flawed. Of- The overall goals of this method of expects of you. Pay particular attention to ten, there is a gap of several weeks to sev- preparation are (1) to produce a better any deadlines provided by the rules, any eral months between the end of trial and work product, and (2) to save time over requirements for obtaining or foregoing the time to write the appellate brief. The the long haul. The method described be- oral argument, formal requirements for appellate court will decide the case on the low involves a lot of work before writing briefs, and generally, any rules governing record, not on your adversary's or your the first word of the first draft. The practice before the court. memory of what happened at trial. You preparation is time-consuming. However, must be intimately familiar with the I believe that time invested in prepara- GET ORIENTED TO THE CASE record evidence to do an adequate job as tion is well spent. The final product will Also early in the process, if you did not appellate counsel. reflect the hard work and preparation, serve as trial counsel, you will need to get In studying the record, you may find thus enhancing the chances of winning. oriented to the case. You can start before that the court reporter made a critical The writing process itself will be much the record becomes available. Get copies mistake. One example from personal ex- more efficient because the writer has in- of all the pleadings, all legal memoranda perience was the omission of the critical vested the necessary time learning the on file (including trial memoranda and word "not" from a witness's testimony material and getting organized first. memoranda filed to support or oppose under cross-examination, "I would [not] Thorough analysis of the issues before motions), all court orders, jury charges, disagree with that." When this happens, writing results in a better first draft of the jury interrogatories, verdict form, the consult the applicable rules to determine brief, which in turn saves time by sub- judgment of the trial court, and any writ- the procedure for correcting the error. ten reasons given for the trial court's See, <f.#,FRAP 10(e). judgment. Read these materials. If you RAYMOND P. WARD is a partner with were not trial counsel, talk to trial coun- SUMMARIZE THE RECORD Sessions & Fishman, LLP in New Or- sel to get her or his impressions concern- leans, LA. He practices in the areas of ing possible issues for appeal. Summarize the record, as you would product liability defense, general tort de- As you begin to get a feel for the legal summarize a deposition. Some appellate fense, and appellate advocacy. He is a issues on appeal, consult the index of any practitioners summarize the record while member of the Louisiana Association of brief bank that may be available to you. studying it; others review the record first Defense Counsel, the Defense Research If you are a member of DRI, you can use and summarize afterward. For additional Institute, and the Appellate Advocacy the DRI brief bank. (See your Member ideas on summarizing the record, sec Committee of DRL CERTWORTHY SPRING 1998 3 Michael R. Fontham, WRITTEN AND pays dividends of efficiency throughout ORAL ADVOCACY § 3.7 (1985), and LOUI- the remainder of the process. MAKE A WRITTEN CHRONOLOGY SIANA APPELLATE PRACTICE HANDBOOK. If the summary is to serve its purpose, In cases where the pertinent facts occurred § 10.8 (1994) (Roger A. Setter ed.). Use it must include references to the page over a period of time, it may help to make whichever method works best for you. numbers of the record where the testi- a written chronology. This involves going Summarizing the record serves two im- mony or other information can be found. through the written summary, extracting portant purposes. First, it helps you to The Federal Rules of Appellate Procedure the testimony concerning relevant events work efficiently and thus saves time over (and probably most state appellate court that occurred, and putting the testimony the long haul. Second, it helps you to rules) require that factual statements be in chronological order. At trial, various learn and master the record. supported by "appropriate references to the parts of the story are usually told by a Efficiency and time-saving come from record." FRAP 28(a) (4); see also FRAP number of witnesses and are rarely pre- being able to work with the summary, 28(e). By including record references in sented in chronological order. Thus, it rather than the bulky record, throughout the summary, you will later be able to can be difficult to get a clear picture of the remainder of the briefing process. rely on those record references during the how the events transpired and how they This means that the summary must in- outlining and drafting phases. I suggest a relate to each other just by reading the clude all the pertinent information, to- page-by-page fotmat, with record page record, or even by reading the written gether with citations to the record where number in the left-hand margin next to summary. Rearranging the testimony into the original information can be found. the corresponding testimony or other in- chronological order helps the lawyer see Since the summary is supposed to be just formation excerpted from the tecord. clearly exactly what happened and in that (a summary), the goal is to include The second purpose of preparing the what order it happened. The chronology what is important and exclude what is summary is to help you learn and mastet should juxtapose all testimony pertaining unimportant. If you err, err on the side of the record. Thus, the lawyer who will ac- to the same event, whether the testimony over-inclusion; omit something only if tually write the brief should personally is from one witness or from several. The you are sure you won't need to refer to it summarize the record. "Unless the person result: The lawyer can instantly spot in- later. Unlike the summary of a deposition, making the summary is completely famil- consistencies in testimony. Also, when which often includes only witness testi- iar with the issues, he or she may omit several witnesses describe the same event, mony and excludes all colloquies of coun- important references. Moreover, by skip- the lawyer can see at a glance the points sel, the summary of the transcript should ping this step, the lawyer loses an oppor- on which the witnesses agree and those include some reference to objections and tunity to gain the familiarity with the on which their testimony diverges, with- the court's ruling on objections. An evi- evidence that is necessary for good advo- out having to go back and forth through dentiary ruling may be an issue on appeal. cacy." Fontham, supra,, at § 3.7. the record summary (or worse, back and Since one purpose of the written sum- In studying anything, whethet cases in forth through the record itself). Finally, mary is to be able to refer to it in lieu of a law school textbook or a record on ap- the chronology is a useful tool for outlin- the much more bulky record during the peal, you can enhance your ability to re- ing the statement of facts.
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