One thing that can separate a good appeal brief from a very good one is that while the good brief may support the arguments with authority, the very good brief will support those arguments with what I call “layers” of authority. This brief will support its arguments not just with appropriate case law citations from courts of that jurisdiction and/or the appropriate statutes, but will go even farther to strengthen support for the argument by referencing secondary legal authority. This is a useful approach particularly where the client being represented on appeal may for some reason not be viewed favorably by the court and an emphasis on legal authority is needed.

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The additional types of authority can be one or more of the following: (1) case law from sister states or circuits on the same issue, or even a complete jurisdictional survey, (2) law review and bar journal articles, (3) legal treatises, (4) legal “encyclopedias,” such as A.L.R. or C.J.S., (5) a public policy argument developed from news articles or other material of which the appellate court can take judicial notice, or (6) even a discussion based on the application of “fairness” or “common sense” built upon anecdotal stories or other non-legal authority.

These supplemental authorities can be discussed in subheadings or even just footnotes. However presented, they add weight to the authority supporting your client’s position and give extra confidence to the appellate court that the ruling you seek is in line with courts in other jurisdictions and/or legal scholars and commentators. When judges feel there is plentiful support for the ruling you ask them to make, they naturally feel more comfortable in reaching that result. The idea of citing to a variety of additional authority isn’t rocket science, but it represents the kind of extra work that attorneys often don’t do. So, if you really want to win that appeal, add layers of support to your argument.

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