Academic journal article Defense Counsel Journal


Academic journal article Defense Counsel Journal


Article excerpt

International Association of Defense Counsel committee members prepare newsletters on a monthly basis that contain a wide range of practical and helpful material. This section of the Defense Counsel Journal is dedicated to highlighting interesting topics covered in recent newsletters so that other readers can benefit from committee specific articles.


Warren W. Harris

IADC member Warren Harris is Chair of the Appellate Practice Committee and a partner at Bracewell & Giuliani LLP in Houston, Texas where he heads the firm 's appellate group. He is an experienced and accomplished appellate lawyer and litigator, and he has handled hundreds of appeals and original proceedings in the Texas Supreme Court, the United States Supreme Court, and state and federal courts of appeals. This article, which originally appeared in the IADC Appellate Practice February, 2007 newsletter, provides brief-writing advice from appellate judges.


Why advice from appellate judges on brief writing?

Supposing fishes had the gift of speech, who would listen to a fisherman's weary discourse on fly casting, the shape and color of the fly, the size of the tackle, the length of the line, the merit of different rod makers, and all the other tiresome stuff that fisherman talk about, if the fish himself could be induced to give his views on the most effective methods of approach? For after all, it is the fish that the angler is after and all his recondite learning is but the hopeful means to that end.1

The first rule of writing is "know your audience." Appellate advocates know the identity of their audience: appellate judges. The purpose of every brief is to convince those judges to rule in your favor and issue an opinion that is useful to your cause. It makes sense, then, to go to the source to find out what these judges want - and what they do not want - in a brief. As Judge Leonard I. Garth of the Court of Appeals for the Third Circuit has written, "[s]o long as we are the decision-makers, it always helps to keep us happy."2

This article discusses advice given by appellate judges on brief-writing, drawn from their articles, books, and other public statements on the matter. These judges have read thousands of briefs and are willing to share what in their opinion - and that is the only opinion that matters - separates the good briefs from the others. In fact, most of the judges have passionate opinions on at least certain aspects of brief-writing.

Almost every one of the judges who writes or talks about brief-writing starts with the "ABCs:" Is the writing brief? Is the writing clear? Is the writing accurate?3 Thus, this article will start by exploring the importance of each of these questions, and then move to several other common points of advice from appellate judges. These points - eight, in total - can make the difference between an ineffective brief a judge must suffer through and an effective brief that will keep a judge happy.

Be Brief

Appellate and trial judges reading briefs on the weekend before argument have a special spot in their hearts for those who just make their points, state their authorities, and then "get out of Dodge."4

Unnecessarily long briefs "lose their persuasive edge as well as their credibility."5 A judge working under time pressure does not appreciate being forced to read twenty pages when the argument could have been expressed in ten. Of course, everything necessary to make one's case must be included in a brief, but the brief should consist of nothing more. Judge Dubina of the Eleventh Circuit has written: "An attorney should express only what is essential in the fewest number of words."6 This sentiment is echoed by Judge Hamilton of the Fourth Circuit: "Undeniably, of the hundreds of appellate briefs I have read, the most persuasively written argument components were those written with the precision of a neurosurgeon - not a millisecond of time was wasted getting in, doing precisely what needed to be done, and getting out. …

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