While many people, even law school graduates, envision heated oral arguments when think of civil and criminal appeals, the fact of the matter is that the written appellate briefs are the actual focus of each and every appeal. In fact, many jurisdictions are increasingly doing away with oral argument in a majority of appeals. Most experts would surely agree that almost every appeal is won or lost on the brief. This is especially true in situation where the appeal is being handled by a trial attorney who seldom writes appellate briefs. To be sure, the job of the appellate attorney is very different from that of a trial attorney. Appellate work, including brief writing, presents its own set of unique issues and strategies which are best addressed by an experienced appellate advocate.
One of the clearest example of this kind of disconnect is trial attorneys inexperienced with appellate practice write their brief as if they are speaking to a trial judge or a jury, focusing on emotional aspects of a case or details that are important in the big picture, but not relevant to the issues being addressed on appeal. Falling back on rhetoric or emotional appeals can often send a very clear message to an appellate court that your client does not, in fact, have a legal leg to stand on.
To seasoned trial attorneys, effective appellate practice and brief-writing can often look much more like an exercise in understanding and following rules than the more free-form, artistic practice of trial advocacy. There is certainly some truth to this, and it is often said that appellate practice is much more about an expertise in the process rather than the particular subject matter being litigated. Indeed, the renowned Judge Learned Hand famously threw a brief from the bench at counsel because the brief went over the stated page limit. However, creativity and originality are just as important to effective brief-writing as they are to trial work. The difference is, perhaps, knowing when and how to exercise that ingenuity.
The typical appellate brief has several sections. The first item of substance in an appellate brief is usually the “Questions Presented.” Although usually very shot, this section is of the utmost importance. Clearly framing and establishing what the issues are that the appellate court should consider is critical and can make or break an appeal. Confusing or convoluted statements of the issues can not only immediately frustrate the court, and lose credibility for the attorney, but it can make the rest of the brief an effectively futile effort. If the court doesn’t clearly appreciate the issues being presented in the particular appeal from the outset, then much of the judges’ time and energy while reading the brief will be spent trying to determine what the issues actually are, rather than absorbing and considering the attorney’s actual arguments.
After the “Questions Presented” is typically the “Statement of Facts.” This is another area in which trial advocacy and appellate advocacy can diverge in some ways. An effective trial litigator will often take great pains to characterize each and every point and description of the facts of a case in a way that is designed to convince a jury or a judge that his client should prevail. Especially when it comes to a jury, this can be a powerful argumentative tool when done well. However, when it comes to appellate briefs, it is usually important to stick to the facts and avoid argumentative language in this section of a brief. To be sure, every word and phrase must be included and structured with overall strategy in mind, but this is not typically the place for argument and it can lose an appellate attorney a great deal of credibility if they are seen to be trying to spin facts in this way.
Next is the heart of the appellate brief – the “Argument” section. This is often, though not always, the most lengthy portion of the brief, and the section where an appellate attorney most directly makes their points to the appellate court as to why the court should rule in their client’s favor. This is also the primary section in which the brief will reference and analyze the law that applies to the case, whether prior court decisions, statutes or state and federal constitutions. The appellate attorney’s task is, most simply, to apply the applicable law to the facts and circumstances of the legal decisions at issue and convince the appellate court that the lower court was either correct or made an error. While this is a relatively straightforward task, this “Argument” section can take many forms and appearances and is perhaps the section in which the appellate lawyer can most fully express their skill and creativity. While appellate practice is often dominated by minutiae, rules and formulas, the “Argument” section of a brief is where the appellate practitioner can present their case with more freedom and flexibility. Despite this, there are still some good heuristics, or rules of thumb, from which appellate attorneys would be wise to stick to more often than not. For example, clarity is king. Dense and complicated sentence structure can greatly undermine an otherwise compelling argument.
The brief itself is where the vast majority of appeals are won and lost. In this arena at least, reason and the written word still dominate over rhetoric and spin. In that sense, the appellate brief is perhaps the purest form of legal advocacy, and its importance cannot be overstated.