In my last post I wrote about subtle ways to help lessen the impact of adverse facts when writing an appeal brief. Just as you want to lessen the attention the reader gives to adverse facts, you want to increase the attention given to positive, helpful facts. As I posted on March 30th, don’t be one of those lawyers that takes the easy approach and overuses bold, underline, and italics emphasis in a brief or, heaven forbid, a combination of emphasis.

While I still do believe in the use of emphasis, my years of experience has taught me that less is more effective. The use of emphasis on every page distracts the reader from the proper flow of the narrative argument and inevitably cheapens the effect and purpose for the use of emphasis.

So, if you can’t simply highlight the importance facts by using some form of typographic emphasis, how can you bring attention to them in an appeal brief? I have used a variety of techniques, and the following is one of the best.

Show ’em, Don’t tell ’em.  One way to emphasize facts is to show the facts from the record instead of simply writing about them in a descriptive narrative. This technique makes facts more memorable than a simple narrative description. An example would be to quote from the record in an appropriate instance. Pulling quotes from a deposition or trial testimony in the same question and answer format of the transcript is much more effective than a narrative description that may include a snippet quotation in a sentence. Selectively using the language actually used by a client in deposition or at trial can help make those facts linger with the reader, and the block quoted portion also breaks up the brief from a continuous narrative discussion. It can also assist the storytelling aspect of a brief by providing the reader with dialogue to move the plot of the story.

Another way to show ’em is to actually place a document in the brief itself.  This can easily be done with a one-page document, and if the document is longer you can create a pdf document version and place snippets into your narrative. If it’s important that a contract clause had a bold heading in 14-point font, show the reader what it looked like by showing the real thing.  It will make your brief memorable and it is a solution for the problem of judges other than the one to whom the case is assigned not taking the time to review the record. While documents can be attached to a brief as an exhibit, working them into the actual narrative of the brief creates a much bigger impact.

MMM diagram

(Photo credit: Wikipedia)

A third way to show ’em is to use diagrams or charts, when appropriate.  A narrative description of the structure of a corporation is often confusing and boring when presented in a lengthy narrative, yet thought provoking when presented by diagram. A complex transaction can also be made simpler to understand by a diagram. Diagrams and charts are often found in magazine and newspaper strories and there is a good reason why; they quickly convey information in an understandable format. Give it a try in your brief. Try sketching out a diagram of the facts in pencil and then having it prepared using Power Point or another program to look professional. If you can create a compelling diagram that simplifies a complex set of facts, there is no doubt the reader of your brief will turn back to it again and again. And if that happens, your client will have a good chance to win the appeal.

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