After finishing law school, I was eager to enter private practice and begin what was for me a new and exciting second career. But I was given the opportunity to accept a clerkship working for Chief Justice Sonny Hornsby of the Alabama Supreme Court. It wasn’t an opportunity I could turn down and, little did I know, that one year would turn into five years working for the Court.

My clerkship with Chief Justice Hornsby led to a position as staff attorney for retiring Justice Henry Steagall for the remaining six months of his term. Then I stayed on as a staff attorney to help his replacement on the Court, newly-elected Justice Terry Butts, get a good start. However, instead of staying on a few months, I ended up working for Justice Butts for about three years, until he resigned to run for the position of Attorney General. Finally, I did end up staying a few months to assist his appointed replacement, Justice Champ Lyons, Jr.  So, in five years I worked for four justices, both liberal and conservative, both hands-on and hands-off, and learned the intimate details of how appeals are decided after the lawyers’ work of drafting briefs is done.

While of course I learned the internal procedures used by the Alabama Supreme Court (a topic for another day), I believe the most important thing I learned in those five years is that the appeals, mandamus petitions, and certiorari petitions are not reviewed and ruled upon by objective and disinterested computers that precisely weigh the merits of each opposing brief and award the win to the highest scoring party. No, appellate matters are decided by overworked and imperfect human beings, with their own varying level of interest and built-in personal beliefs and biases. This human frailty applies to both the justices themselves, who make the ultimate decisions regarding their votes, but also to the staff attorneys and law clerks that assist them. And I learned how quickly these matters must be decided given the volume of cases and the limitations upon the size of each justice’s staff of attorneys/law clerks, which most certainly only worse today, two decades later given substantial cuts in judicial budgets.

So, when working on your next appellate brief, keep in mind that you are writing to real people who come and go and experience life as we do, not to some distant, cold, electrically-fed machine in Montgomery, Alabama or other state capital, that grinds up briefs and spits out rulings and opinions every Friday afternoon at 1:00 p.m. based upon which party cited the most on-point favorable case. When you realize this it makes the work of an appellate attorney a daunting task, and even more so when representing an appellant where you have the burden of overturning a lower court ruling.

To win an appellate matter you must make your brief come alive, hold the reader’s attention, influence the reader to view your client favorably, and help guide the court to the result you want. With the paucity of oral argument, the appellate brief is very likely your only opportunity to present to the court the passion you hold for your client’s cause and that passion, though controlled, should be palpable. Your brief must be more like a compelling novel, telling a story of conflict, than the dry and lifeless tome that is most often submitted on appeal. If your brief is the one that the appellate judge or staff member goes back to again and again in preference to that of the opposing party as the matter is being considered, the chances of your client winning will climb immeasurably.  Sometimes having the “best” case or fact in your favor is enough for your client to win, but most appeals simply aren’t that easy.

So brush up on your writing skills. Read about legal writing (hint: this blog is helpful as are others); read some exciting fiction and see how the best writers make pages jump with life. You’re writing for real live people and it’s time to change how you view an appellate brief.