An archive of Howard J. Bashman's monthly columns about appellate litigation, with other of his writings thrown in for good measure
A Concise Guide To Writing Better Appellate Briefs
By Howard J. Bashman
Monday, February 11, 2002
During my more than ten years as an appellate lawyer in private practice and two years as a federal appellate law clerk, I have read hundreds of appellate briefs that others have written. One cannot read so many appellate briefs, drafted by so many different lawyers, without concluding that the average quality of appellate brief writing in the United States is far too low.
When I began clerking for a judge on the U.S. Court of Appeals for the Third Circuit in August 1989, I had hoped for a steady diet of appellate briefs exemplifying excellence in written appellate advocacy. That hope, however, was quickly dashed.
Most of the appellate briefs that I encountered during my clerkship were unnecessarily difficult to understand, unpersuasive and full of careless spelling, grammar or citation errors. And by citation errors, I don't mean that the lawyer has failed to master the Bluebook. Rather, a brief would state that the key controlling precedent could be found on page X of volume Z of the Federal Reporter, but the decision wasn't there or, even worse, was there but had been overruled long ago.
Appellate judges agree that the parties' briefs play the most significant role in determining an appeal’s outcome. True, appellate judging involves more than deciding which party has the higher quality appellate brief and ruling in its favor. The facts and the law may require a ruling for the party whose appellate brief is incomprehensible, illegible or chock-full of errors. In such a case, that party should be the winner. The outcome of many other appeals is less clear-cut, however, and in those cases the winning party usually is the one whose appellate brief was easier to understand, better reasoned and more persuasive.
The suggestions that follow will give you a much better chance of winning those many appeals in which the quality of your appellate brief will influence, and perhaps determine, the outcome of the case.
Have a good writer and clear thinker write your appellate brief:
Law school, whatever its virtues, does not teach lawyers to write well. Some lawyers write well; others do not. All too often, it is the lawyers who do not write well who are responsible for drafting a party's appellate brief.
All law firms, big or small, should have at least one lawyer (and hopefully many more) who is both a very good writer and a very clear thinker. This is the person who should write your appellate brief. Instead, the lawyers who handled a case in the trial court usually write the brief when the case goes on appeal. Some of these lawyers may be good writers, and some may be savvy appellate strategists, but most are not. As a result, many highly regarded law firms submit appellate briefs of widely varying quality.
With enough time and effort, can someone who is a bad writer significantly improve? I remain ever optimistic, although I believe that being a top-notch writer, like being a skilled artist, requires innate talent that only some have. Two books that can help lawyers at any level of expertise write better are "Plain English for Lawyers," by Richard C. Wydick, and "The Practical Stylist," by Sheridan Baker.
Another way to become a better appellate writer is to read decisions written by appellate judges who are excellent writers and thinkers. I try to read all U.S. Supreme Court decisions as they issue and all decisions published by Seventh Circuit Judges Richard A. Posner, Frank H. Easterbrook and Terence T. Evans. Also, by observing how appellate judges who disagree over the outcome of a case argue with one another in their opinions, appellate advocates can see a variety of effective styles of written advocacy.
Keep your appellate brief straightforward, short and easy to understand:
An appellate brief should be written in plain language, employing a tone that is confident yet understated. I aim to write appellate briefs so that someone who knows nothing about the facts, procedural circumstances or governing law can understand what is at stake and be convinced that my clients deserve to win.
A style that avoids legalese, over-aggressiveness and exaggeration, while employing more subtle forms of persuasion, will cause the reader to have confidence that your arguments lead to a sound result. You should also strive to keep your appellate brief as short as possible, omitting facts, procedural developments and legal arguments that are irrelevant to the issues on appeal.
Why not use all 50 pages or 14,000 words, or write a brief that can only be understood by someone who has lived with the case since it was filed or who already has the most sophisticated understanding of the governing law? The answers are simple.
Appellate judges are incredibly overworked. They are forced to read approximately one thousand pages of text to prepare for a single day of oral argument. If your brief is unnecessarily long and complicated, it may not get read completely, it may not get read carefully, or, worst of all, it may not be understood. Moreover, most appellate judges are generalists, not specialists. They do not have an expert's understanding of every substantive area of the law. Nor, of course, do appellate law clerks, who usually arrive at that job fresh from law school.
Even the most complex factual and legal concepts can be made easy to understand if presented properly to the reader. My advice is not to avoid complexity; instead, make complicated concepts understandable to someone who may be confronting the matter for the first time.
Before I file an appellate brief that I have drafted, I ask another lawyer in my office who has had no prior involvement in the case to read it over and let me know whether he finds it understandable and persuasive. Unless someone who knows nothing about your case can understand and be persuaded by your appellate brief, the document is worthless.
Read high quality appellate briefs written by others:
When my clerkship concluded, I left with a handful of the best appellate briefs that I encountered there. These examples of excellence in written appellate advocacy provided a benchmark for my own work. Today, thanks to the Internet, you don’t need an appellate clerkship to access top-notch appellate briefs.
The Office of the Solicitor General of the United States, which serves as the federal government's lawyer in the U.S. Supreme Court, produces appellate briefs that are consistently excellent in quality. The Solicitor General has a Web site where that office's latest Supreme Court briefs and petitions can be accessed.
One aspect of written appellate advocacy that far too many lawyers ignore is the persuasive framing of the issue. An issue should be stated with sufficient detail for the appellate court to understand how the question should be resolved.
"Whether the district court’s grant of summary judgment should be reversed?" fails to suggest an answer. A more effective statement of that issue would be: "To prevail on a claim for negligence, a plaintiff must prove damages flowing from the alleged breach of duty. Given plaintiff’s concession that the alleged breach of duty caused no damages, did the trial court properly enter summary judgment for the defendant?"
Learning from some of the best available appellate briefs has helped me become a better appellate lawyer, and it will do the same for you.
Enable the appellate court to rely with confidence on every citation in your brief:
Before filing an appellate brief, I re-check all cited authorities to ensure that they remain good law. Equally as important, every citation in the brief must be checked to make sure that the passage being quoted or cited can be found where indicated. Whether the appeal involves a multi-million dollar dispute or a pro-bono client, I will not submit an appellate brief that has not been thoroughly checked and re-checked for accuracy of its citations to the law and to the record.
During my appellate clerkship, we occasionally received appellate briefs that were missing a page or two of text because of photocopying errors. This type of carelessness sends entirely the wrong message, and the court may not be in a forgiving mood when it encounters your error in production.
An appellate brief must provide the court with a roadmap for ruling in your client’s favor. Citation and production errors defeat that goal and must be avoided.
Make your brief visually appealing:
Once you have an appellate brief that is well-written, thoroughly researched, persuasive and easy to understand, you can focus on making the document look good.
On its Web site, the Seventh Circuit has posted "Requirements and Suggestions for Typography in Briefs and Other Papers
." In its suggestions, the court strongly recommends that lawyers avoid submitting briefs printed in Courier or Times New Roman fonts, the very fonts that the vast majority of lawyers now use.
Instead, according to the Seventh Circuit, lawyers should submit briefs printed in Book Antiqua, Century Schoolbook or other fonts that are far more legible and distinctive than Courier or Times. Century Schoolbook is the font that the U.S. Supreme Court and the Solicitor General use. My most recent Third Circuit brief, filed February 6, 2002 in a pro bono appeal on behalf of an INS detainee who fled the West African nation of Burkina Faso to escape persecution and torture, was printed in Century Schoolbook font.
If you wish to submit appellate briefs that are not just solid in content but also look good, you should consult the Seventh Circuit’s typography suggestions.
A California state appellate court recently issued an opinion that emphasized the importance of high-quality appellate brief writing:
"The appellate practitioner who takes trial level points and authorities and, without reconsideration or additional research, merely shovels them into an appellate brief, is producing a substandard product. Rather than being a rehash of trial level points and authorities, the appellate brief offers counsel probably their best opportunity to craft work of original, professional, and, on occasion, literary value." In re Marriage of Shaban, 105 Cal. Rptr. 2d 863 (Ct. App. 4th Dist. 2001).
My suggestions for improving the quality of appellate briefs are certainly easier to offer than to implement, but you will find following them to be well worth the effort. Meanwhile, those who are content not to master the skill of written appellate advocacy should remember that outside help is available.
This article is reprinted with permission from the February 11, 2002 issue of The Legal Intelligencer © 2002 NLP IP Company.