The “Conclusion” May Be at the End, But that Doesn’t Mean it Isn’t Important.
Posted on April 16, 2012
The most useless words ever written in an appeal brief may be some form of the following:
For all the foregoing reasons, the ruling of the [lower court name] should be [affirmed/reversed].
Using a single sentence like that as the Conclusion section of a brief tells the appellate court that you’re so tired of writing your client’s brief that you simply want to finally bring it to an end and you don’t care how. In his book with Bryan Garner on appellate practice, United States Supreme Court Justice Antonin Scalia calls such a conclusion, “hopelessly feeble.” So unless you’ve written the best brief ever and have no more room remaining in your page or word limit, you better give your conclusion a little more thought and effort. And even if you’ve written that great brief, you can surely edit it enough to make room for at least two or three paragraphs. Maybe some attorneys think that its not worth the bother to prepare a well-written conclusion because no one at the Court will ever read a brief to the very last word. However, my experience as a law clerk and staff attorney at the Alabama Supreme Court is that if a meaningful Conclusion is written — something worth reading — it will be read. A “feeble” ending to a brief leaves the reader wondering why the brief writer did not make use of the section to make the brief end with a bang instead of whimper.
In some courts, the appellate rules require a brief to begin the argument section with a Summary of the Argument. The attorney drafting a brief will of course work hard writing that section. So then why all but ignore the Conclusion? I like to think of the Conclusion section of an appellate brief as a second “Summary of the Argument.” The first Summary of the Argument is written with an audience who is unfamiliar with the facts, legal authority, and issues involved in the appeal. The Conclusion should be written as a summary of the argument tailored for an audience who has now become familiar with those things, but is still in need of closing thoughts before reaching a decision on the appeal.
So what are those closing thoughts? Justice Scalia and Garner suggest:
Say something forceful to sum up your points.
My advice is to close with a final mention of your strongest points:
- your strongest facts;
- your strongest cases or other legal authority;
- your best policy argument(s) as to why your client should win;
- if need be, refute any meritorious arguments of your opponent as long as the last paragraph is not spent discussing your opponents arguments (do that in the middle of the Conclusion section);
- if in a complicated appeal, make sure you explain the details of the relief you seek; and
- remind the Court that a ruling for your client is the right thing to do and that justice requires such a resolution.
As I’ve written in an earlier post, make it easy as possible for the judges — give them a list of why the court should rule for your client. Lists are memorable; lists are returned to after a brief is initially read. As Justice Scalia and Garner suggest, in writing this section, don’t be shy. Let your confidence in your argument come through in your writing more than any other part of your brief. By this point, the judges are familiar with the case and you can write with a more conversational and personal tone.
So write a strong conclusion; for your client’s sake, don’t be feeble.