Writing Appellate Briefs - PowerPoint Presentation

Slide1

Writing Appellate BriefsSlide2

Have a Point

Easy to say; frequently difficult to do

Each sentence should have a point that is connected to the other sentences in the paragraph (and the larger argument)

Focus on facts and law that advance that point

Edit out things that don’t contribute to your pointSlide3

Legal Writing Compared to Other Genres

Legal writing is not its own species

Comprehensible and cogent

Aim for intelligent layperson

Brief

Excessive length does not overawe readers; it annoys them

Interesting

To the extent possible, tell a story that makes the judge want to rule for you

To the extent possible, argue the law in a way that makes the judge think ruling for you is consistent with binding precedentSlide4

Fenimore

Cooper’s Literary Offenses

That a tale shall accomplish something and arrive somewhere. But the “

Deerslayer

” tale accomplishes nothing and arrives in air.

They require that the episodes in a tale shall be necessary parts of the tale, and shall help to develop it. But as the “

Deerslayer

” tale is not a tale, and accomplishes nothing and arrives nowhere, the episodes have no rightful place in the work, since there was nothing for them to develop.Slide5

Mark Twain, 1895

Say what he is proposing to say, not merely come near it.

Use the right word, not its second cousin.

Eschew

surplusage

.

Not omit necessary details.

Avoid slovenliness of form.

Use good grammar.

Employ a simple and straightforward style.Slide6

Writing Well, Generally

Give the reader as many signposts as possible:

Each paragraph develops an idea, and that idea is clearly related to your argument

A topic sentence lets the reader know where they are in the argument

Transitional sentences to move from one paragraph and topic to the next

“In addition to;” “Not only this, but that;” “To be sure___, but____ as well.”Slide7

More General Writing

Archaic figures of speech only rarely help the writing or the argument

A little Latin goes a long way

Varied sentence structure is better than endless uniformity

Use some varied vocabulary

Don’t use all passive voice

But don’t make a fetish of it

Can help downplay a less-than-ideal factSlide8

Editing Searches

“there w”

make/made an

prior to

pursuant to

Such

Which

That was

In order to

Failed

The fact thatSlide9

We shall not cease from exploration

And the end of all our exploring

Will be to arrive where we started

And know the place for the first time

T.S. Eliot, “Little

Gidding

,”

The Four Quartets

Edit your own work as pitilessly as possible

Have someone else edit it more ruthlessly still

Omit what is unnecessary—judges read many briefs

Restructure where necessary to convey meaning more clearly and concisely

Move up conclusions that it took a fair bit of thinking and writing to guide the readerSlide10

Tone

Abusing your opponent

Adjectives, adverbs,

Outrage, name-calling,

ad hominem

attacks

Hyperbole: easy to overdo caricatures of justice, description of client’s virtues, law enforcement officer’s moral turpitude, stupidity of court below, base treachery of opposing counsel, borderline frivolity of all opposing arguments, etc.

Making fun of your opponent

Take (and treat) opposing arguments seriouslySlide11

Elements of an Appellate Brief

Statement of the Issue

Write as question or as statement

Be accurate and brief (3 lines?)

Frame the issue as persuasively as possible without being disingenuous; accurately, but in your terms

Should suggest the correct conclusion

Contain enough legal and factual detail to get the court’s attention

Purpose of Statement of Issue

consider writing it last

Nothing cumbersome or incomprehensible

“Whether the district court erred by enhancing the sentence by 16 levels pursuant to Application Note 1(B)(iii) of U.S.S.G. § 2L1.2(b)(1)(A)(ii).”Slide12

Arguments du Jour

Scotusblog

Petition of the day

Argument previews/summaries

Read briefs

Emails for 10

th

Circuit and state cases

Websites for particular topics

Volokh

Conspiracy

Sentencing Law and Policy

How AppealingSlide13

Statement of the Case

Old Rule:

FRAP 28(a) The appellant’s brief must contain, under appropriate headings and in the order indicated:

…..

(6) a statement of the case briefly indicating the nature of the case, the course of proceedings, and the disposition below

(7) a statement of facts relevant to the issues submitted for review with appropriate references to the recordSlide14

New Rule Combines Statements of Case and Argument

28(a) The appellants brief must contain, under appropriate headings and in the order indicated

…..

(6) A concise statement of the case setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record.Slide15

Facts

Tell an interesting story that suggests a conclusion

Advocacy couched in apparently neutral terms

A matter of emphasis of good and bad facts

It must be accurate

Include bad facts

So long as they are non-trivial and material to your issue

Cite every factual statement to the record on appeal

Include citations as you write the first draft

Cite-check them manually before you file

Consider writing this first when it is fresh from reading recordSlide16

Exercise Discretion

Style may be likened to an army, the author to its general, the book to the campaign. Some authors proportion an attacking

force

to the strength or weakness, the importance or unimportance, of the object to be attacked; but Cooper doesn’t. It doesn’t make any difference to Cooper whether the object of attack is a hundred thousand men or a cow; he hurls his entire force against it. He comes thundering down with all his battalions at his back, cavalry in the van, artillery on the flanks, infantry massed in the middle, forty bands braying, a thousand banners streaming in the wind; and whether the object be an army or a cow you will see him come marching sublimely in, at the end of the engagement…

Mark Twain,

Fenimore

Cooper’s Further Literary Offenses: Cooper’s Prose Style,” 1895.Slide17

Argument

Have a point and get to it as quickly as possible

Guide the reader through the argument so that the conclusion appears to flow naturally

Use headings (and sometimes sub-headings)

Support each statement of law with citation to authority

Do this as you write—forgetting the place where a necessary argument came from is inevitable

Cite check before filing

Not too many block quotes

Incorporate crucial language into your sentences

No string cites to obvious propositions

Use the most recent controlling precedent available for a pointSlide18

Ordering the Issues

No one-size-fits-all answer, but think about it

General Rule is strongest issue first, but what does strongest mean?

Issue that affects whole case (e.g., insufficiency of the evidence) vs. issue that could only get new sentencing

Issue with best chance of winning

But could be less confusing to discuss in chronological order, especially if in that order in statement of case and statement of issuesSlide19

Summary of the Argument

There are rules that govern this—read them

Write this (along with the statement of the issue) when you have finished writing everything else

Don’t be coy

Lay out all important points of argument clearly and concisely

Do not just repeat subheadings from ArgumentSlide20

Plain Error

Make the argument in Opening Brief if issue wasn’t properly preserved

Argument may not be preserved for appeal if not raised and briefed in Opening Brief

Argue the alternative as well, that error was preserved

Credibility with Court

Look for plain-error precedent on your question

A few types of error generally satisfy one or more prongs of testSlide21

Reply Briefs

Briefly contextualize the argument (1 or 2 sentences)

Address the government’s better arguments

Keep to your own structure

Respond to government’s issues in whatever order works for you

Respond selectively

Read government’s cases carefully

Fairly frequently government makes dubious use of precedent—distinguishable, irrelevant, holding overstated

Exercise some restraint over toneSlide22

Lord Goring: There’s somebody I want you to talk to.

Lord

Caversham

: What about?

Lord Goring: About me, sir.

Lord

Caversham

: Not a subject on which much eloquence is possible

Oscar Wilde,

An Ideal Husband

Sometimes clarity is not your friend

Read record:

Docket, transcripts, charging documents, any motions, PSR

Suppression,

Brady

, grand jury, indictment, speedy trial

Jury selection, evidence, instructions, arguments, sufficiency of the evidence, all elements of offense in indictment and found by jury

Change of plea

Sentencing: Guidelines calculation, crimes of violence, § 3553(a), explanation of sentence, variances, reasonablenessSlide23

Miscellany

Tastes differ

Some judges make those tastes apparent

Call chambers; look on website (JJ. Shelby and

Nuffer

)

Check for briefing rules:

Federal Rules of Appellate Procedure

Local Rules

Keep word lists

Alternatives to “states” or “argues”

Use thesaurus