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,
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. In most cases, remainder of the briefing process, the member the material by involving more the statement of the facts is simply the summary should include all information parts of your brain in the process. Reading story as told from your client's petspec- that might have some bearing on the the record and writing a summary of it tive. Most of the time, you will want to brief. The information should be detailed involve not only eyesight but also motor tell the story in chronological order. Hav- and accurate enough to enable you to rely skills. Similarly, dictating the summary ing a written chronology in hand makes on it without having to refer back to the involves not only eyesight but also speech it easy to extract the pertinent facts and record itself (except perhaps for direct and hearing. Whether you write the sum- present them in chronological order. quotes of testimony). Summarizing the mary yourself or dictate it, by summariz- If you are computer-literate, making a record is a timc-consuniing chore, but it ing the record you force yourself not only chronology is simply a matter of using saves time later. As you go through the to read the material, but also to think your word processor to cut and paste se- tcmaining steps of the briefing process about it, to decide whether it is important, lected material from the summary and re- described below, you will find it much to analyze it, to boil it down to its essence, arranging it into chronological order. If easier to work with a summary than with and to write or speak a few sentences you prefer low-tech methods, index cards the full record. When you need to locate conveying the essential information. The can serve the purpose. Write on an index some crucial bit of testimony to support result is that you learn the matetial better card a short description of each relevant your contention, you will find it fairly because you bring more of your mental fact or event, the name of the witness de- quickly in the summary without having resources to bear on the task. Being inti- scribing the event, the time or approxi- to plow through the much more volumi- mately familiar with the record evidence mate time of the event, the all-important nous record. (If the summary is on a is essential for analyzing possible issues record citation, and (if there is enough computer, the word-search feature of on appeal. Though this article is not room) the testimony or other informa- your wotcl processing software can often about preparing to argue orally, intimate tion itself. Rearrange the index cards into locate the testimony instantly.) 'I'bus, knowledge of the tecord is also essential chronological order. Then, working with time invested in preparing the summary for arguing extemporaneously and for re- the stack of cards and the record sum- sponding to the judges' questions. mary, either dictate the chronology or
4 CERTWORTHY SPRING 1998 write it out longhand. Again, make sure again immediately before sending the final to include in the chronology not only the RESEARCH AND ANALYZE THE version of the brief to be photocopied.) testimony, but also the name of the wit- POTENTIAL ISSUES ness giving the testimony and the page in Next, research and analyze the potential MAKE A SEPARATE RESEARCH the record where the particular testimony issues. There is not enough room in this OUTLINE FOR EACH LEGAL ISSUE can be found. article to tell you step-by-step how to I have found it helpful to make a separate conduct legal research. Two works I rec- research outline for each legal issue. The SELECT THE ISSUES ON APPEAL ommend highly are Clyde Emery, A purpose is to collect in one place all of STREAMLINED BRIEFING TECHNIQUE After you have studied and summarized the legal authorities on a particular point. (1973), and John Alan Appleman, SUC- the record, you are ready to begin selecting What you include in the outline in addi- CESSFUL APPELLATE TECHNIQUES 554-57 the issues on appeal. Write down your tion to the citations depends on the pur- (1953). I do wish to pass on a few tips to ideas on paper, making a list of all issues pose for which you are considering citing put on your research checklist. that appear at this stage to be potential or distinguishing the particular authority. Don't forget to research the standards of winners. Keep in mind the standards of If you are using a case as authority for a appellate review applicable to the particu- appellate review applicable to the respec- rule of law, you should quote the rule of lar issues in the case. The Federal Rules of tive potential issues. While appellate law from the case verbatim. If you arc us- Appellate Procedure require that the ar- courts generally review legal questions de ing the case to compare its facts to the gument in the appellant's brief "include novo, they generally defer greatly to the facts of your case, you should include a for each issue a concise statement of the trial court on its factual findings. On evi- succinct analysis of the facts of the cited applicable standard of review—" FRAP dentiary questions, the trial court's ruling case with a notation as to what the court 28 (a) (6). Some state appellate courts may generally will not be overturned unless it did in light of those facts. The authorities have similar requirements. Aside from constituted an abuse of discretion. Thus, should be arranged in order of impor- that requirement, you must understand if an issue is one where the appellate tance or strength, with the strongest or the standard of review applicable to each court will tend to defer to the trial court, most authoritative coming first. issue in order to evaluate competently and if your case is not compelling enough The mini-outline of law serves two your chances of winning on that issue to overcome that deference, you had bet- purposes. First, just as the mini-outline and to advocate your position credibly. ter find another issue or, failing that, con- of evidence on a factual point helps you Be efficient. Look for the controlling sider recommending to your client that evaluate the strength or weakness of evi- authorities first. On questions of federal the appeal be voluntarily dismissed. dence on that point, the mini-outline of law, try to find a United States Supreme legal authorities helps you instantly see Court case first or, failing that, a case how strong the law is on a particular legal MAKE A SEPARATE MINI-OUTLINE from the controlling circuit. Look for point. Second, when the time comes to FOR EACH IMPORTANT merely persuasive authorities only if you outline and actually write the brief, you FACTUAL POINT can't find any controlling authorities. will have a ready, efficient means of re- (The exception to this rule is the case Once you have figured out potential is- locating the legal authorities. The mini- where you are trying to have the control- sues for appeal, you should know which outlines of law can save you lots of time ling authorities overruled or modified.) factual points relate to those issues. You later by avoiding having repeatedly to For each proposition of law you put may wish to consider making a separate plow through a pile of books or photo- forward, try to find (a) the oldest sup- mini-outline for each important factual copied cases to find some snippet of law porting authority, and (b) the newest. Be- point, with each outline containing all during the outlining or drafting phases. testimony on that particular point (includ- ing able to cite both ancient and modern authorities "emphasizes the continued ing names of witnesses and record cites). ANALYZE THE ISSUES This serves two purposes. First, by seeing validity of that point of law without all testimony on an important point in drowning the inference in a sea of cita- As you research (in fact, throughout the one place, it becomes easier to analyze tions." 2 George K. Rahdcrt and Larry entire briefing process), analyze the issues. the evidence and evaluate just how strong M. Roth, APPEALS TO THE FIFTH CIR- In other words, make a conscious effort or weak the evidence on that point is. CUIT MANUAL, ch. 21, p. 14 (1997). to think about them. Set aside time to Second, when you outline the brief be- Don't wait until after you write the devote to analysis of the issues. Don't just fore writing, you can save time and effort brief to Shepardize or otherwise update read the legal authorities; absorb them by incorporating all or parts of these your authorities. If you think you're going and understand them. Try to learn not mini-outlines into the big outline. By do- to use a case, update it while you're still in only the rule of law, but the underlying ing this, you can assure yourself of in- the research and analysis phase, or at the principle or the reason for the rule of law. cluding in the big outline (and eventually latest, before you outline the brief. You Think about how the underlying princi- in the brief) all evidence on a particular don't want to draft, edit, and polish an ples apply to your case and whether they point that helps your cause. The result entire argument, and then find out that support your position. If you do this, and will be a stronger, more compelling brief. the pivotal case on which the entire argu- if you later base your argument on the ment rests was overruled five years ago. underlying principles, you will convey (You should also update your authorities the impression of having fairness and jus-
CERTWORTHY SPRING 1998 5 tice on your side, not just technicalities not likely to convince them with your strong opening salvo lends strength to the of law. weaker arguments. Second, if you mix balance of the brief. Aside from that, the Talk about the issues with others. "Ex- weak arguments with strong arguments, "strongest argument first" rule is so well plaining the arguments should deepen you run the risk of burying your good ar- recognized that the appellate judges will the lawyer's understanding of his or her guments in excess verbiage. Third, offer- expect that your first argument will be position. Moreover, objective parties may ing up numerous arguments will make your best. If you give them a weak argu- provide a perspective on the persuasive the court think that you don't have confi- ment first, they will assume that the re- power of the arguments." Fontham, su- dence in any one. Fourth, since most ap- maining arguments are even weaker. pra, at § 3.10. Encourage those to whom pellate courts impose page limits on briefs Finally, remember that the judge may not you talk to play the devil's advocate. It's (not ro menrion time limits on oral argu- read your entire brief. If you save your good practice for oral argument, and will ment), you probably don't have the space best for last, the judge may never read it. help you anticipate and preempt your or the time necessary to adequately brief If you put your best argument first, you adversary's arguments, a dozen issues. See Jones v. Barnes, 463 enhance the chances that the judge will As you analyze the issues, keep in mind U.S. 745, 752-73, 103 S. Ct. 3308, 3313, actually read it. the "harmless error" rule. An error by the 77 L. Ed. 2d 987 (1983) (citing several Once your outline is ready, you are fi- trial court is not grounds for reversal un- experienced appellate judges and advo- nally ready to begin writing the first draft less the error made a difference or could cates who unanimously agree that only a of your brief. If you have prepared thor- have made a difference in the outcome of few issues should be argued on appeal). oughly by using the methods suggested the trial. For example, an erroneous evi- above (or by using other methods that dentiary ruling is generally not a ground MAKE AN OUTLINE OF THE BRIEF work for you), the actual writing of the for reversal if there is other evidence brief should flow smoothly. You should proving the same fact for which the erro- Before actually writing the brief, you must be able to draft or dictate the entire brief neously included or excluded evidence make an outline of the brief. "The lawyer in one sitting. You shouldn't have to stop was offered. As you analyze an issue, ask who writes a brief without a preliminary to think about what to say next or to find yourself whether the error in question outline would if he were a carpenter, some bit of testimony or snippet of law. truly affected your client's rights. If you build an edifice without a plan." Your first draft will be much better than can answer that question "yes" with con- Mortimer Levitan, Confidential Chat on it would have been if you had not pre- viction, you just might have a winnable the Craft of Briefing, 1957 Wis. L. REV, pared. As a consequence, the final version issue on appeal. If you cannot, consider 59, 60. At this point in the process, hav- will likewise be a much better work prod- discarding the issue. ing exhaustively studied the record and uct than you could have produced by thoroughly analyzed the issues, you need writing first and then doing the research to organize your thoughts and ideas. NARROW THE ISSUES and record review while editing the draft. Making an outline forces you to organize. Ultimately, you will have improved your After you've researched and analyzed the If you have followed the steps recom- chances of winning the appeal. potential issues, you should narrow the mended above, the outline is already issues. This involves more than weeding halfway done. For each issue you have se- CONCLUSION out the frivolous issues. You need to elimi- lected, you should already have in hand nate issues and arguments that arc weak or mini-outlines of all evidence on impor- There is no one right way to prepare to shaky. Also, as suggested above, you should tant facts pertaining to the issue, as well write a brief. However, I believe that hard eliminate issues and arguments concern- as mini-outlines of pertinent legal au- work and preparation before writing are ing errors that did not make a difference thorities. Outlining will consist mainly of essential, and that the preparation must in the ultimate outcome at trial. You selecting from the mini-outlines the ma- include studying and mastering the need to select just a few strong issues on terial to be included in the brief and or- record and thorough analysis of the is- which you can make compelling argu- ganizing it into a coherent presentation. sues. Beyond that, preparation is simply a ments and with which you can win the Include in the outline appropriate record matter of getting organized. Any method case. How few issues? Experienced appel- citations for facts and appropriate legal is good if it helps the brief writer master late judges and advocates agree thar a citations for law. the record, analyze the issues effectively, good rule of thumb is a maximum of three Experts agree that in organizing the work efficiently, and (most important) or perhaps four issues on appeal. argument, you should start with the ultimately write a winning brief. The There are a number of solid reasons strongest issues and arguments first. First method suggested above has helped at for this rule of thumb. First, if you can't impressions counr before an appellate least this appellate practitioner accom- convince the appellate judges with your panel, just as they count before a jury. A plish those goals, ijj^ three or four strongest arguments, you're
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