Going Against the Rules of Conventional Wisdom in Writing Briefs for “Longshot” Appeals.
Posted on April 27, 2015
Whether in my past practice in a mid-sized law firm where I was chair of the appellate practice group, or as a freelance lawyer and brief writer until recently, I’ve generally been the guy other lawyers turn to for help with a difficult appeal. As a result, I’ve had lots of experience writing briefs for appellants with little chance of winning or otherwise representing parties with uphill battles in appellate matters and have been lucky enough to win more times than expected.
I’ve written here before that in such circumstances, an appellate attorney must be bold. A boring brief of the kind judges and staff attorneys have seen a thousand times before simply won’t do.
In these types of appellate matters I shun the rules of conventional wisdom in brief writing that constrain the careful appellate attorney. You know those rules: “Only raise your very best issues.” “Keep your brief and arguments as short and concise a possible.” “Don’t discuss irrelevant facts, only the most essential ones.” “You’re writing for a judge, not a jury, so leave emotion out of it.”
There are many others. I usually don’t pay too much attention to them, especially when my job is to have a seemingly bulletproof lower court opinion overturned. The main reason why I don’t pay attention to them is that these “rules” were created by judges, whose interests are not in line with the appellate attorney or his or her client. Appellate judges are more than happy to quickly read the briefs and dispose of an appeal by affirming the lower court without a published opinion.
It’s the job of an appellant’s attorney to wake the appellate judges up from their daily routine. That’s done by being bold, by personalizing your client, by telling a compelling version of the facts, and often by raising every potentially-meritorious issue.
You may ask, “But how can you do all that while still trying to keep the brief as concise as possible?” The answer is, you can’t and you have to forgive yourself for writing a lengthy brief. I don’t believe length is a problem if the brief is well written. No one complains about a great novel being too long; it’s the boring novel that gets put down quickly, regardless of length. And at least one study of appellate briefs and related rulings bears this out. A draft of a law review article by Gregory Sisk and Micheal Heise, professors at the University of St. Thomas School of Law and Cornell Law School, respectively, reveals that longer appellant’s briefs are more successful. They studied the relationship between the length of an appellant’s brief and the likelihood of lower court reversal in the U.S. Court of Appeals for the Ninth Circuit, and reached this conclusion:
Brief length proved powerfully significant in our study and with substantial effect, for appellants. However, the direction of correlation was the opposite of the conventional judicial wisdom. Longer briefs by appellants were associated with a greater probability of achieving reversal, while exceptionally short briefs were much more likely to be filed in losing appeals. For this set of appeal briefs, persuasive completeness may be more important than condensed succinctness.
So, thoroughly plan your appellant’s brief in advance, write it as tightly as possible, and edit, edit, edit. But don’t let length be a prime consideration until you exceed the word or page limitation. Keep the focus on winning.