Tips for authoring a winning brief on appeal
1. Choose your best issues
As lawyers, the cloud of waiver is always hanging over our heads, and we tend to err on the side of being over-inclusive rather than risk waiving an argument. On appeal, however, the judges and their clerks have limited time to address each case and often have only a few weeks to wrap their brains around facts and issues that the lawyers have been dealing with for several months or even years. By addressing every possible basis for reversal, your best arguments may be lost as the judges and their clerks try to wade through the record and make sense of everything. Instead, fight that temptation and try to keep your appeal as simple and straightforward as possible. Focus on the key, dispositive issues and spend time thoroughly explaining why they support your case.
2. Think like a judge
Identify the information the authoring judge is going to need to draft the opinion and make sure you include it in your brief. For example, state the standard of review; explain the procedural posture; summarize the substantive law that applies; and outline the relevant facts. This may seem obvious, but these basics are often overlooked in the rush to dive immediately into the arguments, forcing the judges and their clerks to spend time resolving such preliminary matters before being able to analyze the merits.
3. Use an Outline
In preparing your brief, create an outline of all the issues and the supporting arguments. Then, use this outline as a template for your brief to clearly enumerate your various arguments to the court. For example, on appeal of a grant of summary judgment, you might state that “the district court erred in granting summary judgment of no liability for three reasons.” You would then list each reason upfront and proceed to address each reason in the body of your argument, providing transitions as you move from one reason to the next.
4. Stick to the Facts
Your opponent’s position may be beyond the pale and their arguments full of red herrings. Or perhaps they surprisingly (or even shockingly) cited a case that is utterly irrelevant. But using such exaggerated rhetoric has little persuasive effect. Rather than wasting your word count on adverbs and idioms, focus on persuasively telling a story based on the facts rather than subjective attorney opinion.
5. Don’t Sacrifice Your Credibility
As an attorney, your reputation truly precedes you. Stretching the facts or misrepresenting the relevant legal authority will not only have an impact on the current appeal before the court but on every future appeal that you litigate. Instead, you want to develop a reputation for integrity and honesty by consistently providing the court with accurate representations of the facts and law. If a case is not directly on point but supports your overall theory, acknowledge where it falls short rather than misstating the holding. If the court’s guidance on a particular legal issue has been inconsistent, note any contradictory decisions and argue why this case warrants a resolution in your favor.
6. Get an unbiased opinion
Have a lawyer unfamiliar with your case read your brief to identify any holes in your arguments or important information that is missing. As lawyers, we become so familiar with the facts and the legal issues in our cases that we are unable to step back and review the brief through the eyes of an outsider. What may seem perfectly clear to us can be completely incomprehensible to someone who is reading a brief without any background knowledge of the case. ■
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Marron Mahoney currently is a law clerk for the Honorable Sharon Prost at the Federal Circuit Court of Appeals.