Academic journal article Journal of Appellate Practice and Process

Persuading Quickly: Tips for Writing an Effective Appellate Brief

Academic journal article Journal of Appellate Practice and Process

Persuading Quickly: Tips for Writing an Effective Appellate Brief

Article excerpt

We write this article to guide the brief-writing advocate on how to make her brief more effective. Because we are a judge and her former law clerk, we think that we know what we're talking about.

The main goal when writing a brief is to persuade the judge that the advocate's argument is the correct one to resolve the parties' dispute. This persuasion must be done quickly because judges read mountains of briefs every year. For instance, each year an appellate judge on the Third Circuit will participate in six court sittings. For each sitting, the Third Circuit judge will have, at most, two months to study all the briefs. (1) For the twelve-month period ending on September 30, 2009, almost 58,000 appeals were filed in the thirteen federal courts of appeals. (2) In the Third Circuit alone, 3750 appeals were filed, (3) adding up to about 300,000 pages of briefs. (4) Indeed, Chief Judge Alex Kozinski of the Ninth Circuit estimates that he reads 3,500 pages of briefs per month. (5) Simply put, the appellate judge reads, writes, reads--and then repeats the cycle.

The furious pace of absorbing law in distinct areas for each sitting makes the life of an appellate judge similar to that of a law student, but with final exams six times a year. Advocates must therefore provide a concise, coherent brief that respects the judge's time constraints. They must appreciate the difference between their perspective and the judge's perspective: Advocates spend months researching and writing a brief, reading it multiple times during the editing process; the judge, by contrast, may read the brief only once. Because advocates usually view the process from their perspective, their briefs tend to be much longer than necessary. The Chief Justice himself has commented that almost every brief that he has encountered could have been shorter. (6) Chief Judge Kozinski made the point with asperity: "[W]hen judges see a lot of words they immediately think: LOSER, LOSER. You might as well write it in big bold letters on the cover of your brief." (7) If advocates understand that the brief will persuade quickly only if it is written for the judge's perspective, they will more easily absorb our suggestions.

This article will, we hope, demonstrate how to write a brief that persuades quickly--and we hope that we can quickly persuade the reader of the merits of our point of view. In its first two sections, our article offers suggestions for achieving the goal. Section one gives tips on improving five parts of a brief: facts, standard of review, argument, summary of argument, and issues presented. Section two provides important brief-writing tips. Finally, section three presents legal principles that advocates should consider while preparing every brief. These principles do not relate to brief-writing, but they are, we submit, principles that may enhance a brief.

I. IMPROVING SPECIFIC SECTIONS

A. Facts

Many advocates dump facts haphazardly into the facts section, without a strategy. Those briefs are thus impotent from the start; they cannot persuade quickly because they have failed to even capture the judge's attention.

You, as an advocate, must provide only legally relevant facts and a strategic number of additional facts that add to the human interest of the story you tell in this section. (8) The legally relevant facts are those that are necessary for application later, in the argument section, to the governing law. For example, in an appeal concerning whether a party complied with the statute of limitations, you should provide the date of injury and the date the action was filed. The facts that add to the human interest are those that forcefully capture the judge's attention and remind her of the real lives affected by the parties' legal controversy.

You should provide those two types of facts while keeping in mind four specific goals: seize the story, summarize the story in the first paragraph, embrace the ugly, and be honest. …

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