Ten Steps to Writing Better Briefs - PowerPoint Presentation

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Ten Steps to Writing Better Briefsin Dependency and Neglect AppealsAugust 3, 2016

Judge Daniel M. Taubman

Colorado Court of AppealsSlide2

I. Outline Your BriefReview the rules.

Brainstorm.

Draft summary of your argument.

Have the issues been preserved for appeal?

Relief requested.Slide3

II. Develop Your Theme or StoryTell a story.

Use initials for parties and children.

Explain the

why

and

how.

Ensure that the record supports your story.Slide4

III. Choose Issues to Appeal and their Order of PresentationAre there threshold issues?

e.g., standing or mootness

Consider strongest issue first.

Put issues in chronological order.

Group issues.

e.g., all evidentiary issues together

Should the appellee reframe the issues?

reorder

regroup

r

estate Slide5

IV. Draft a Persuasive Statement of Issues

Use a straightforward direct statement.

The trial court erred by concluding J.P. failed to comply with his treatment plan.

Use a brief legal statement followed by a question.

The trial court must approve an appropriate treatment plan to meet a child’s needs.

See K.D. v. People

, 139 P.3d 695, 699 (Colo. 2006). Did trial court err in approving a treatment plan for J.P. that did not meet his needs because it failed to provide for adequate mental health treatment?

Don’t use “

whether

.”Slide6

V. Describe the CaseNature of the Case

Remember most judges have limited familiarity with dependency and neglect statutes and cases.

Judges may be reluctant to set aside a termination order out of concern that doing so will upset the status quo for a child.

Course of Proceedings

How was case resolved — trial, dispositional order, summary judgment?

What did the trial court or juvenile court decide?

Explain the basis of the ruling, especially if it is a bench ruling.Slide7

VI. Enhance Your Credibility Through Your Statement of FactsState facts neutrally but cast your client in a

favorable

light.

Be accurate, and cite to the record.

Do

not

serially describe witnesses’ testimony.

As the appellee, it’s okay to agree with the appellant’s statement of facts.

Facts should be consistent with your theme or story.

Facts you discuss depend on prior proceedings.

Summary judgment

Dispositional order adopting a treatment plan

Termination hearing

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VII. Summarize the ArgumentBe succinct – explain rationale of each argument. C.A.R. 3.4(f)(1)(H)

Be persuasive.Slide9

VIII. How Appellants Can Address Each Issue EffectivelyTips for Appellant

Set forth standard of review; preservation of issue.

Set forth law applicable to each issue.

Apply the rules for issue to facts of your case.

Emphasize Colorado appellate cases on point.

State whether issue is one of first impression.

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IX. How Appellees Can Address Each Issue EffectivelyTips for Appellee

Agree with appellant re law when possible.

State additional or different law when necessary.

Agree with appellant that issue is one of first impression or state that it is when appellant hasn’t done so.

You may defend the trial court’s judgment on any ground.

Consider attaching documents.Slide11

X. Getting to the Finish LineState specifically relief you are requesting

For example, do you want trial court to make new findings, or hold a new termination hearing, or do you want the appellate court to reverse an order terminating parental rights?

If you challenge the grant of summary judgment, do you want appellate court to reverse for trial based on disputed facts or rule in your favor based on the law?

Consider filing a Petition for Rehearing

Optional

U

seful to correct factual errors, points overlooked

Should you file a cert petition?