Appellate brief writing is an art.
The article is reprinted with permission from the June 14, 2013 edition of The Recorder.
by Gary Watt
"Appellate work is most assuredly not the recycling of trial level points and authorities." In re Marriage of Shaban, 88 Cal.App.4th 398 (2001). "
[A]ppellate briefs receive greater judicial scrutiny than trial level points and authorities, because three judges (or maybe seven) will read them." Unlike trial judges, appellate judges "work under comparatively less time pressure, and will therefore be able to study the attorney's 'work product' more closely." Given that level of scrutiny, the potential impact of a well-written brief is substantial. And no matter how many briefs one has written, the next one can probably be improved because the craft of brief writing is a search for perfection. But unlike perfection, if a few basic strategies are followed, more effective briefs are easily within reach.
BEFORE WRITING: CHASE ALL THE RABBITS
Effective appellate work requires precision. Even the most elegant, persuasive brief will likely be of little utility to the client if the decisive issue is missed or the wrong arguments made. Trial lawyers just emerging from battle sometimes see the decisive issue too narrowly or not at all. "The upshot of these considerations is that appellate practice entails rigorous original work in its own right." In re Marriage of Shaban. So before even thinking about brief writing, become intimately familiar with case. Even for those who have worked on the matter at an earlier stage, always review the record as thoroughly and carefully as if the matter is entirely new. While reviewing the record, create a working list of possible legal errors as they appear. Be sure to jot down the implicit issues that arise — the other side of the coin — such as burden shifting and waiver. Annotate the list as the record is reviewed. Tables can be helpful to plot all the moving parts.
As the record is being reviewed, some legal research may be necessary to flesh out an issue. After the entire record is reviewed, conduct original legal research on all potentially viable reversible errors. Don't scrimp here, such as relying solely on cases cited in the trial briefs. Trial lawyers keep an amazing number of plates in the air, but usually do not have the luxury of exhaustively canvassing the cases for the best authority. Appellate lawyers do have the time, so chase all the rabbits. "[B]ecause the orientation in appellate courts is on whether the trial court committed a prejudicial error of law," appellate lawyers must conduct "additional research and analysis that takes a broader view of the relevant legal authorities." Such research should also confirm the single biggest obstacle or advantage on appeal: the standard of review. To have a shot at victory, the legal arguments must embrace the correct standard of review.
Suppose the record has been mastered, the case law thoroughly canvassed, the standard of review considered and the list of issues whittled down — is it time to write? Almost. An often overlooked and valuable tool at this stage of the process is the sounding board. Now that the story of the appellate case appears clear, have a discussion with trial counsel about the pivotal issues. If the appeal is being handled by trial counsel, brainstorm with another attorney, preferably one with an appellate practice. These discussions can pay dividends such as the evidence, law and argument crystallizing, the order of arguments changing, and sometimes, a completely different view emerging. Considering how little it takes to get input from a colleague, this is an effective weapon at the pre-briefing stage. Once the sounding board has been played, it is time to write the brief.
WHILE WRITING: ALWAYS BUILD TRUST
The briefs are the heart of any appeal. To write an effective brief, build and maintain trust at every step of the process. There is nothing like the terrible train wreck when the contents of a brief and trustworthiness part ways.
Avoiding exaggeration and distortion is just part of building trust. Persuasion is the goal, and other ingredients come into play. The starting point is to avoid distractions. Typos, bold text, long or frequent block quotes, party names in all caps — formatting violations all have one immediate impact: The reader is distracted from the argument. And avoid ad hominem attacks on the opposing party/counsel and the trial judge. In terms of appellate advocacy, the greater the number of distractions, the less persuasive the brief.
Do not treat the procedural history or statement of facts as perfunctory tasks. This is not mere housekeeping. If the appeal turns on procedure, a tightly woven procedural history will frame the argument to follow. Avoid the clutter of dates that have no significance. And think outside the box. For example, while chronological order is often beneficial, nothing prevents presentation of the decisive moment first — the key filing, colloquy, ruling — and then filling in the essential details once the issue has been framed. If the appeal turns solely on events occurring later in the litigation, such as trial, it's OK to leave out the earlier procedural steps that have no role to play — for example, the filing of four complaints and three demurrers — years earlier.
If there is one place where all of the facets of an effective appellate brief coalesce, it is the statement of facts. Here, the central theme that appears in the introduction is developed, the story of the case advanced from the client's perspective, the standard of review honored (such as when the substantial evidence standard requires all evidence supporting the judgment to be set out), and fidelity to the record established (trustworthiness). In other words, if handled carefully, the statement of facts carries a large potential persuasion payload. The converse should be obvious, but as one appellate court put it, "Despite their own deficient statement of the facts, plaintiffs have the chutzpah to complain about, and ask us to strike, defendants' statement of facts. We were tempted to strike both parties' briefs ... and compel them to start over." Lewis v. County of Sacramento, 93 Cal.App.4th 107 (2001).
Most attorneys love drafting legal arguments; there is usually no lack of enthusiasm here. But enthusiasm alone does not necessarily equate with effective brief writing. Headings and subheadings should be affirmative conclusions stating an independent ground for victory or an essential link in the chain. Explain the rule of law and case holdings with precision. Choose the most recent case from the highest court. And select cases with facts similar to those on appeal. Be meticulous in distinguishing cases that could be damaging. Avoid string citations except in those rare instances when the point is to demonstrate uniformity among many courts.
The rubber really hits the road in any appellate brief when the rule is applied to the facts. Signal the transition to application with simple phrases such as "here," and don't forget about the record. When applying the law, do not just state the facts, cite to the record — it's not just a good idea — it's required. Cal. Rules Ct., rule 8.204(a)(1)(C). Persuasiveness turns on exacting application of the law to the record, and trust is maintained by making it easy — user friendly — for the justice or court attorney to verify the facts. Carefully crafted legal arguments demonstrate a tight fit between the law in the abstract and its application to the record on appeal.
AFTER WRITING: EDIT, EDIT AND THEN EDIT AGAIN
Reaching the conclusion is not the end. Some of the most important work begins now. For persuasive briefs are not just written; they are revised again and again. Clarity and cohesiveness improve each time the draft is rewritten. And if the same argument can be made in fewer words, the result is usually a more effective brief. Break up the editing into separate phases such as reading to revise the structure and persuasiveness of the arguments, reading for grammar/typos, checking citation format, etc. Each of these edits is usually most effective if separately performed.
Not everyone wants to write appellate briefs. But everyone who writes appellate briefs can produce more effective, persuasive briefs. With the devotion to detail that appellate work encourages, and a mantra of building the reader's trust from cover to cover, clients can be placed in the best possible position on appeal. And the lawyers drafting such briefs can avoid the realm of mediocrity, or worse, the ignominy of having their work called a "a slubby mass of words rather than a true brief." N/S v. Liberty Mut. Ins. , 127 F.3d 1145 (9th Cir. 1997).
Gary A. Watt is a partner with Archer Norris and a State Bar-approved certified appellate specialist. He is also director and supervising attorney for UC-Hastings' Ninth Circuit clinical program, The Hastings Appellate Project, and chair of the Contra Costa County Bar Association's appellate practice section. He can be reached at email@example.com, and his blog posts are at www.caappellatelaw.com.