Actually, they are not that secret since it is self-evident and nothing more than common sense, but the two basic rules for preparing an appeal brief do bear repeating from time to time.

To win an appeal, your brief needs to:

  1. make the judges want to rule for your client rather than the opposing party; and
  2. give the judges a reasonable, justifiable basis for the court to do so.

These two rules are based on the real-world fact that appellate judges, although constrained to some degree by precedent, generally have enough wiggle room in the law and facts to decide an appeal whatever way they want. In other words, judges are seldom going to make a ruling that they have to “hold their nose” to make.

Municipal Court judges, 2001

(Photo credit: Seattle Municipal Archives)

So, you have to make them want to rule for your client. Perhaps you present your client as a favorable person or entity. Perhaps you present your client as the defender of certain case law precedent. Perhaps you point out a multitude or errors in the lower court ruling. Perhaps you subtly appeal to the known political or legal biases of the judges. Perhaps you appeal to any court’s tendency to affirm lower court judgments and rely upon stare decisis. Whatever manner of argument or persuasion is appropriate in your case, the first hurdle is to get the court to want to rule in your client’s favor.

The next step is to give them a means to do so. In other words, you must provide the judges some legal doctrine or case law precedent on which they can rely to justify the ruling (affirmance or reversal)  they now want to make. The means for the court to rule in your favor may have little or nothing to do with the reason why the court would want to rule in your favor; it may simply provide a palatable basis for the court to rule in your client’s favor. Perhaps the court wants to rule for an appellant because of sympathies  to an injured victim and the basis to do so is reliance upon a strict dictionary definition in an insurance policy provision that constrains that exclusion. There are as many examples as there are cases; it’s up to you to determine what the appropriate argument will be in your case.

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