“What is your game plan?”

Football: Jets-v-Eagles, Sep 2009 - 07

(Photo credit: Ed Yourdon)

That’s the first question I asked a lawyer who had requested my help with an important appeal. The lawyer’s first response was a blank stare, then a statement that the plan was to start writing the next day and to have a draft completed by the end of the week. I replied that that wasn’t the answer I was looking for and explained that in my experience writing a great brief takes great planning.

One thing that busy trial lawyers who are used to re-using various standard form motions and other pleadings often have trouble accepting is that you can’t just cut-and-paste trial court pleadings into the form of a brief required by the appellate rules and expect to win. Now, it’s possible that the filing of such a brief may result in a win, but that will be because there are very strong supporting facts, case law precedent, or both. Or because of another factor that plays into the results of appeals, judicial politics. But in the close case that could go either way on appeal — which occurs most often — writing a great appeal brief requires great planning. So, what’s your game plan? You better have one.

In creating my game plan is for an appeal brief, before I ever start writing I consider, at the minimum, the following:

  • what are my strongest facts and how can I emphasize them?
  • what are my weakest facts, and how can I shift the appellate court’s focus from them while still acknowledging them?
  • what are my best cases, what precedential value do the have, and are there any key statements that should be quoted?
  • what cases really go against me, what precedential value do they have, and how might they be distinguished?
  • are there any public policy considerations or that might influence the outcome of the appeal and, if so, how to use or defend against them?
  • what is the standard of review for the issues raised on appeal, and is it favorable or adverse?
  • considering the facts, the law, and the standard of review, what should be the theme of the brief?
  • how can the theme be emphasized in every section of the brief?

Only when you can answer each of those questions, and similar ones that may be peculiar to your appeal, is it actually time to start writing your brief. Not before.

Another issue that affects how you plan to write an appeal brief is whether your client is the appellant or appellee. Appellate courts generally look to affirm because they recognize the effort that went into the trial court litigation, and are going to need a good reason to undo the status quo. This is reflected by the applicable standards of review. Thus, if your client is the appellant you must consider yourself a two touchdown underdog. That means in writing the appellant’s brief you have to go on the attack against the lower court’s judgment (while still maintaining respect for the trial court, respect for opposing counsel, and your own credibility). On the other hand, if you are representing the appellee you have the benefit of favorable standards of review and thus the luxury of playing prevent defense (don’t let your opponent lure you into accepting a de novo review standard unless it is truly applicable.). Factors like this should be considered in the game plan for your appeal brief.