When writing a brief for a trial or appellate court, you have to keep in the forefront of your mind that the purpose of any brief is not to educate judges on the facts of your case or the controlling law and then hope the court will rule for your client. The job of the attorney advocate is to convince them to rule for your client (sometimes despite the facts or the law), and to make it as easy as possible for the judge to understand why he or she should do so. One of the best ways to do so is the use of lists.

Using lists in your brief is a basic way of simplifying and condensing your argument. It’s a way to “spoon-feed” judges, who are short on time and who are looking to your brief to get to the point in a hurry. Yet lawyers often forget to use lists in the brief as a way of quickly stating why their client should win. My favorite sections of a brief to place such lists are in the “Summary of the Argument”section, if required; in an introduction subheading of the “Argument;” and again in the “Conclusion.”

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goat (Photo credit: Wikipedia)

Lists can be created in several ways. The lists can be narrative (First, …) numbered or lettered ((1) … or (a) …), or made using bullet points. Whatever choice made on technique,  remember to keep to the point: why your client should win, or why the opposing party should lose. As an appellate advocate, your job is to make it as easy as possible for the judges reading your brief. As one state supreme court justice I worked for often said, “Put the hay down where the goats can get it.” Make it easy for a judge, not a struggle. Lists help make your brief “easy.”

Here’s an example from a brief that I recently wrote for a small Alabama law firm needing assistance with an appeal involving one of the firm’s clients:

There are several reasons why the circuit court was correct in ruling that the State Fire Marshal’s purported adoption of the 1997 Standard Building Code is beyond the Fire Marshal’s authority and thus without effect. First, the statutes cited by [appellant] — but conveniently not quoted or discussed — completely fail to to provide the authority to establish a building code for the construction of homes. ….

Second, even if the State Fire Marshall could adopt a statewide standard building code for home construction, the Fire Marshal’s regulation provided no building inspectors to enforce any potential building violation. ….  Because the regulation has no enforcement provisions, it cannot be found to have any regulatory effect on building practices in [the] County.

Third, both section 27-3-17(a) and Chapter 482-2-101-.04 provide that the State Fire Marshall lacks authority to issue a regulation that conflicts with a law of this state. ….

Fourth, such conflict exists with the statutes that [appellees] cited to the circuit court in support of their motion in limine. ….

In another appeal from a few years ago, I sought to have overturned a trial court verdict against my client in a slip-and-fall case. I argued that the trial judge had ignored evidence in the record supporting the requested jury instruction on the defense that a puddle in a men’s restroom was an “open and obvious danger.” Using bullet points, I gathered together the evidence supporting that argument in a short, but powerful list:

  • [the appellee] had notice at the time of his fall that the floor of the restroom could be wet — in prior instances he noticed that an employee was occasionally mopping the floor;
  • [appellee] testified that the puddle was “middle ways” across the restroom floor adjacent to the urinals along the far wall.
  • [appellee] testified that the puddle was large enough (4foot x 8 foot) that it should have been easily noticeable;
  • there was no testimony that the lighting in the restroom was insufficient for the puddle to be seen.

There are many ways that lists can be used in writing an appellate brief, limited only by the imagination of an appellate advocate. However utilized, a concise list of arguments or facts gets to the point in a hurry and adds a powerful punch. It’s a technique to remember when you write your next brief. Briefs don’t always have to be eloquent, just effective.  

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