Techniques Used in a Winning Appeal Brief.
Posted on October 18, 2013
It’s now been nearly two years since leaving the Birmingham law firm where I was chair of the appellate practice group to undertake a career as a freelance appellate lawyer assisting solo practitioners and lawyers in small firms with their appeals and appellate brief writing. That’s been enough time for a number of those appeals to have been decided by the appellate courts and I’m happy to say that there have been as many appeals by appellants won as lost, which I consider a substantial success. For example, as noted in this post, recent data from the 11th Circuit Court of Appeals showed that appellants were successful only 8% of the time. Although, the Alabama Supreme Court, the other appellate court in which most of the appellate matters I’m involved with, provides annually data regarding its appellate docket, that public information does not include any data regarding whether judgments on appeal have been affirmed or reversed. However, my guess is that appellants in that court or other state appellate court are not much more successful on average than in the 11th Circuit. The author of a business law blog extensively discussed in this post the success rates of appellees as compared to appellants in appellate courts around the country and recommended, in jest, that appellate attorneys only represent respondents (appellees).
I recently reviewed the winning briefs which I either wrote entirely or in concert with the attorney handling the appeal to make note of why those briefs were likely successful. I found one brief in particular that incorporated a variety of techniques to gain and hold the attention of the appellate court. Those techniques are worth briefly noting here.
Inserting a Photograph. There were quite a few notable photographs in the appellate record. But few judges bother to review the entire record. It’s the appellate attorney’s job to spoon feed appellate judges with the things he or she wants the judges to see. Thus, I made sure an attention-grabbing photograph was inserted directly into the text of the brief where it could not be missed.
Use of Tables to Present Information. Narrative discussion is a great method to present information and its the one appellate briefing rules are designed to accommodate. But, as with inserting a photograph into the text, it’s not always the best or most concise way of presenting information. Another good way is to use a table feature found in most word processing programs. In this brief, a table was used to compare the trial court’s conclusions with regard to deficiencies of a complaint with the actual text of the complaint in order to demonstrate to the appellate court that the alleged deficiencies simply did not exist. Another table was used to concisely present the holdings of a number of favorable court opinions, saving space in the brief for other topics.
Setting the Appeal in a Larger Context (i.e. Create Backdrop). One thing to keep in mind in writing an appeal brief is that the lawyers know more about the facts and law involved in the appeal than do the appellate court judges. It’s easy to forget to give the appellate court a bit of a broad introduction to the situation or legal issue on appeal to provide the judges with context for the questions presented for their answer. You don’t need anything more than a couple of paragraphs lest you lose the judge’s attention, but a brief introduction (written favorably to your client) let’s the judges see where the issues on appeal fit into the larger landscape of the law.
Making Use of the “Conclusion.” Most lawyers don’t make much use of the “Conclusion” section of their brief. That’s a mistake, as pointed out in a post I wrote last year found here. Think of the Conclusion as a “Summary of the Argument” tailored to judges who should know more about the issues than before reading the Argument section of your brief. The Conclusion section is a great opportunity to close with the strongest points made in the last 30 or 40 pages of your brief and is your chance to end a brief powerfully, rather than with a whimper.
If you feel you may need help with writing an appellate brief, or just have a question about appellate practice, feel free to contact me through the web site for my freelance legal writing service, Appeals and Briefs by Michael Skotnicki, Esq., found either through clicking the logo on this page or via this link, www.appealsandbriefs.com.
- Practice Tip for Aspiring Appellate Attorneys (mktlawblog.com)