In theory, every law school graduate should know something
about how to write an effective appellate brief. After all, first-year legal
writing classes in law school often concentrate on that skill. Moot court
competitions do too. Compared to other kinds of legal work, appellate briefs
seem tidy and self-contained, with a predictable structure. So they are what law
Once in practice, regardless of law school background, trial
lawyers sometimes seem to believe that no special talent or training is needed
to write a good brief on appeal. The idea appears to be that what works before a
jury or is acceptable to a busy trial judge should be more than adequate for an
Despite what law students should learn and despite what lawyers
think they know, appeal after appeal is lost, or at least made harder to win,
because of ineffective briefs. Why? In part, because many lawyers write
appellate briefs infrequently. When they do have to brief an appeal, they fail
to appreciate that the job is different from much other lawyering. It poses
special problems, but presents special opportunities, for advocacy.
The most common mistake made by trial lawyers is to think that
they should do the same thing in the appellate court that they did in trial
court. They write their jury speech and call it a brief. At best, they address
the appellate judges as they would address the trial judge. At worst, they treat
the appellate judges like jurors.
Such advocates bog down in irrelevant detail and empty
rhetoric. Ninth Circuit Judge Alex Kozinski’s comments about oral argument apply
even more forcefully to the brief: "When a lawyer resorts to a jury argument on
appeal, you can see the judges sit back and give a big sigh of relief. . . .
[W]e know, and you know we know, that your case doesn’t amount to a hill of
beans, so we can go back there in the conference room and flush it with an
Even those who understand that a court of appeals is different
from a trial court often fail to seize the opportunities for advocacy that an
appellate brief offers. They may recall their early law school lessons, but they
do not know and do not take (or do not have) the time to study the more
sophisticated lessons that actual experience in appellate practice can bring.
Their written product is formulaic. It fails to take advantage of the
flexibility that an appellate brief writer has in packaging arguments to meet
the needs of a particular case.
Here is what we mean by effective packaging: A few years ago,
the Supreme Court considered a case that turned on the interpretation of two
complex, interrelated statutes. One statute involved regulation by the FDA, and
the other involved patent law. Conventional law school wisdom would have called
for the brief to begin with a statement of the events giving rise to the
controversy, followed by a description of the proceedings below. The winning
brief did not do that. Instead, it opened with a four-page description of the
statutory scheme. Not one sentence on those four pages was argumentative or even
disputable. The passage alerted the Court to the statutory elements that the
brief writers knew were most significant and helpful to their side. It gave the
Court a framework to understand everything else the brief said — from the
statement of facts through the conclusion of the argument.
Ultimately, the Court ruled in favor of the side that had taken
the unconventional approach, saying that it found ‘ "the structure of the
[statute] taken as a whole" ’ to be dispositive. The critical information the
Court needed to rule as it did was in those first four pages. Of course, this
technique is not right for every appeal (although it probably makes sense more
often than not in cases turning solely on statutory construction). But it is one
way an advocate can achieve maximum effectiveness while staying within the
Note that we have referred to "staying within the rules." That
is important. The rules are the first thing any lawyer must consider before
putting pen to paper — or fingers to keyboard.
A surprising number of prominent litigators fail to read,
understand, and follow the rules that govern appeals. A noted constitutional
lawyer recently got egg on his face when the D.C. Circuit rejected one of his
briefs because it "evaded" the court’s page limits by having too many long
footnotes. The Seventh Circuit frequently writes tart opinions about such
Judges can express their disapprobation of noncompliant counsel
in even more emphatic ways. Many years before he became a Supreme Court Justice,
John Marshall Harlan briefed an appeal to the Second Circuit. His brief was too
long, but the clerk’s office did not reject it. When Harlan’s senior colleague,
Emory Buckner, stood up to present oral argument on the appointed day, Judge
Learned Hand demanded to know who wrote the brief. Buckner said that he himself
had merely "put [his] name on it"; he complimented his junior colleague as the
Learned Hand Throws a Brief
Some compliment: After huffing that the brief was too long and
saying he would not read it, Hand threw it over the bench. It landed on
counsel table with a thud. The youthful lawyer (and future Justice) sitting
there was left with a queasy stomach and a sinking feeling. If you want to avoid
being pelted with your own handiwork, consult and follow the rules.
A lawyer writing a brief in the United States Supreme Court
need consult only one set of formal rules: the Rules of the Supreme Court of the
United States, which became effective in its current form on January 1, 1990.
Those rules are clearly written and easily understood, as far as they go.
Experienced Supreme Court litigators know, however, that certain Supreme Court
practices do not appear anywhere in the rules.
For example: If a brief writer has cited materials in the brief
and wants them readily available to the Justices, but those materials cannot be
included in the joint appendix (perhaps because they are not part of the
record), the Clerk usually will allow copies of the materials to be "lodged"
with his office. (The materials must, of course, be served on opposing counsel.)
The Oxford Companion to the Supreme Court of the United States (1992)
mentions this technique, but only in the book’s discussion of the Solicitor
General — as if the procedure was somehow available only to the government. In
fact, it can be used by any litigant who knows to ask the clerk’s office for
permission to use it.
Because this useful technique (and several others) are not in
the rules, a Supreme Court brief writer ordinarily should consult the leading
treatise on the nuts and bolts of Supreme Court practice. Popularly known for
decades as "Stern and Gressman," the book Supreme Court Practice came out
in late 1993 in a seventh edition, written by Robert L. Stern, Eugene Gressman,
Stephen M. Shapiro, and Kenneth S. Geller.
The lawyer writing a brief for a federal court of appeals must
consult two sets of rules. One is the FRAP. Lawyers quickly learn that is not a
Boston native’s term for a milk shake, but is instead an acronym for the Federal
Rules of Appellate Procedure, which apply in all federal courts of appeals.
But the FRAP is not enough. A brief writer also must study the
"local rules" of the court to which the appeal is being taken. Each court of
appeals has authority to supplement or modify the FRAP; idiosyncratic rules
abound, setting traps for unwary advocates. For example, the FRAP sets page
limits for reply briefs; but the D.C. Circuit regulates brief length by the
number of words. The same court also has special procedures and unusual
timetables for obtaining leave to file an amicus brief. The Fourth Circuit
insists that footnotes in printed briefs meet the same minimum size requirements
as text. The Ninth Circuit requires that parties submit "excerpts of record"
rather than the "joint appendix" more common in other appellate courts (and
discussed in FRAP 30); it directs counsel to use special citation forms for
documents in the district court record. The list goes on and on.
State appellate courts also usually have detailed rules. There
is so much variation from state to state that it is useless to generalize, other
than to repeat the basic point: find, read, and follow the rules.
One rules-related question comes up more than any other: When a
case is complicated and adequate briefing will push up against the page limits,
how, within the rules, can you squeeze the text you need into the allotted
number of pages? Almost all appellate courts specify in their rules the maximum
number of pages and the minimum size of margins. But there is considerable
variation in the degree to which courts regulate type styles and sizes. Many
courts will allow proportional spacing (easy to do on modern word processors) or
submission of printed briefs, without imposing a page-limit penalty. These
techniques, if permitted by local court rules, enable you to expand the content
of a brief by 20 percent or more while still producing an attractive, readable
Not all courts will countenance clever format shuffling,
however. When a court does have rules governing the format of a brief, obey them
or be prepared to face the music. A few years ago, a petitioner seeking review
of an NLRB decision in the Seventh Circuit was denied permission to file a
70-page brief. It then resubmitted the same brief "stuff[ed] . . . into 50
pages" by "a variety of typographical techniques" prohibited by the Circuit’s
rules, such as 1-1/2 spacing and type smaller than the required 11 points.
"[T]he lawyers, caught with their hands in the cookie jar, . . . apologized and
promised not to play the same trick . . . again." But apologies were not enough.
The court forcefully expressed its disapproval of the lawyers’ conduct and
imposed a $1000 penalty. You probably don’t want something like that to happen
Unsubstantiated rumor has it that some United States circuit
judges have requisitioned special rules that printers use to measure type sizes
and margins, illustrating an amateur detective’s zeal for catching lawyers who
try to squeeze too much material into their briefs. Whether or not that is true,
one judge has written for public consumption his reaction to a brief that
chisels on the type size: "It tells the judges that the lawyer is the type of
sleazeball who is willing to cheat on a small procedural rule and therefore
probably will lie about the record or forget to cite controlling authority."
Encountering that attitude could be worse for you than a $1000 fine.
Let us pause for a moment and consider the standard advice for
how to meet page limits without disobeying or evading the rules. It is a
humorless, spartan maxim: Write short briefs; be so economical and terse that no
squeezing is needed. As is often the case with standard advice, these
admonitions have much truth to them, but they are not uniformly correct.
Some cases do warrant short briefs. The first case that
one of us argued in the Supreme Court was a relatively simple Fourth Amendment
matter; the total number of pages in the petitioner’s brief, respondent’s brief,
and reply brief combined was less than the 50 pages the rules allowed for
a single party’s opening brief. But that is unusual. Other cases do
warrant the full number of pages allotted by the rules, or (with the permission
of the court) even more.
"Write short" is not a panacea. Relatively extended treatment
may be necessary because the case involves an especially complex issue or
because a number of issues must be presented. In some cases, a court could
follow any one of several routes to the same conclusion, and the advocate must
present each logical path, not knowing which the court will take. When appellate
judges lament — as they frequently do — the unnecessary length of some of the
briefs they see, they may not appreciate fully that a lawyer cannot, as a judge
can, simply settle on a single true path to the desired result.
Our own advice on how to meet page limits is not merely to be
brief. Instead, first write lean prose that makes the necessary points and
avoids excessive repetition. Then, if the brief is too long, take advantage of
whatever latitude the rules provide (but no more) to vary margins, typefaces,
line endings, and so on. Then edit the prose to make it leaner still.
Judges may always grumble about the length of briefs, but, if
you stay within the rules and write briefs that tell them what they need to know
in economical prose, they usually will come around. After flinging John Marshall
Harlan’s brief at him, Learned Hand eventually voted in favor of Harlan’s
client. Hand even called Harlan in to tell him it was "a very good brief."
So much for format and length. What about substance? Usually
the first non-boilerplate item in an appellate brief will be something called
the "Questions Presented" or the "Issues Presented" or the "Statement of
Issues." This section can be critical. It is difficult to underestimate the
importance of clear, effective framing of the issues: In advocacy, as in life,
first impressions last. Unfortunately, many briefs state the issues in a way
that either impairs the author’s credibility or confuses the court’s
understanding of what the appeal is about.
Advocacy has a role in drafting the questions presented, but it
is a mistake — and a common one — to slant the formulation of the issue too
obviously in your own favor. Consider an extreme example: Suppose your case
presents a question of whether exigent circumstances entitled police officers to
enter your client’s dwelling without a warrant; the police say they acted to
prevent the destruction of drugs that could be used as evidence. In such a case,
you should not present a question such as "Whether the Fourth Amendment has been
suspended as a result of the ‘War on Drugs.’ " You may, if the situation
warrants, want to suggest to the court that the search was unr easonable and
that excessive zeal in the "War on Drugs" explains the government’s behavior
(and the trial court’s ruling condoning that behavior) — but save the point for
the argument section. If you start out so contentiously in the question
presented, the court will conclude that you are unwilling — or unable — to ever
be balanced. It will cast a skeptical eye on everything else you say and assume
that it is all slanted. Your credibility — a key element of a brief — will be
You can preserve your credibility for formulating the issues on
appeal even-handedly; but there is another challenge: You must also make the
questions comprehensible. If the judges cannot understand what the case is about
from the initial substantive exposure to your writing — a statement they expect
to be clear — they may have far less patience with the parts of your brief that
may legitimately be complex.
A good brief writer can formulate clear, neutral-sounding
questions but frame them in a way that tends (subtly, of course) to suggest the
answer the writer seeks. The question should not present your argument, but it
should express a clear point of view about the case.
An example from one of our recent cases may demonstrate the
distinction. It was an antitrust case. Our opening brief (for the appellants)
stated five issues presented and did so in less than half a page. We slightly
loaded one of them with what we thought were helpful facts:
Whether defendant can be labeled a "monopolist" under Section 2
of the Sherman Act because it owned the only bowling center in a small area,
even though uncontradicted evidence showed that defendant lacked power to
exclude competition or control price.
Our adversaries took a different approach. They heavily loaded
their issues presented and took five pages of their brief to state them. The
first issue presented, according to our adversaries, was:
Was the finding of the jury that [defendant] possessed monopoly
power in the Antelope Valley of California ("the relevant market") supported by
substantial evidence when there was evidence (a) that over time [defendant’s]
share of the relevant market increased and, ultimately culminated in [defendant]
achieving a 100% share of such market; (b) that two competitors of [defendant]
withdrew from, and no competitors entered, the relevant market; (c) that the
prices charged by [defendant] for bowling services in the relevant market were
higher than those charged by [defendant] in markets where it faced competition;
and (d) that because of the limited availability of bowling center and equipment
financing, potential competitors confronted a significant barrier to entering
the relevant market?
Sometimes these things are a matter of taste. Lawyers might
differ over which of these formulations is preferable, and the decision in a
case is unlikely to turn on such phrasing variations. We cannot help thinking,
however, that judges tire quickly of laboriously reading such detailed Questions
Presented and would prefer to see the minutiae elsewhere.
Remember, the Questions Presented section is likely a judge’s
first exposure to your side of the case. It is a place to provide a concise
overall view of what is at stake. It is not a place to bury a judge in detail. If
judges must wade through facts, the significance of which is not immediately
apparent, they may have a hard time grasping what your arguments are about.
Another key to successful appellate litigation (at least for
the appellant or petitioner) is to limit the number of questions presented. Here
again, there are no universal rules: Two questions presented are
sometimes too many and five are sometimes too few. But it is fair
to say that judges are more likely to give full attention to fewer issues than
to many. An appellate lawyer must resist the temptation (and the pressure from
client or trial counsel) to include many issues in the hope that, somehow,
lightning will strike one of them. And it is never good advocacy to present two
or more questions that simply rephrase what is really a single legal issues.
Sometimes, a succinct introductory sentence or two, or even a
succinct paragraph, placed before the questions presented will aid understanding
of a complex case. Most courts permit this device, although relatively few
advocates use it. Here is an example:
Prior to 1983, the tax code prohibited the compounding of
interest on tax deficiencies or on tax overpayments. In section 344 of the Tax
Equity and Fiscal Responsibility Act of 1982 (TEFRA), Congress repealed that
prohibition and provided for the compounding of all such interest. Section
344(c) of TEFRA directed that these changes would apply to "interest accruing
after December 31, 1982." The question presented is whether section 344(c)
authorized the compounding of appellant’s tax-deficiency interest, which had
completely ceased accruing on February 1, 1982.
Elegant prose? Perhaps not. But imagine how much more inelegant
it would have been to cram a single sentence with enough subordinate clauses to
embrace all of these ideas. The case was technical, as were the issues. The
statement of the question presented broke out the main ideas into separate
sentences so that the judges could understand more easily what they were being
asked to decide.
No Argumentative Statements
We now come to one of the few absolute — but, unfortunately,
often violated — rules of brief writing: The Statement of Facts should
never be argumentative in tone. The Statement of Facts is for telling the
court what the case is about. The argument portion of the brief is for
contention about the significance of those facts. Nothing impairs a brief
writer’s credibility more than an emotional, sarcastic, plaintive, or visibly
one-sided Statement of Facts.
In order words, in the Statement of Facts, understated advocacy
works best. A judge will be more prepared to believe that your client should win
if your statement seems objective than if it editorializes. A judge will be more
inclined to accept the fairness of your statement if it acknowledges the other
side’s strongest points and introduces — but does not argue — the facts or
concepts you will later use to counter the other side. Remember, judges are
lawyers, too, who are accustomed to careful analysis of facts and authorities.
If your statement presents your case in a fair but favorable light, you do not
need to carry every argument all the way to its logical conclusion at that
point. You certainly need not drown the reader in rhetoric.
A closely related blunder is committed by many appellants
challenging adverse jury verdicts. They fail to recognize that the evidence will
be reviewed on appeal in the light most favorable to the verdict — that is, most
favorable to the other side. It may be appropriate to describe both parties’
evidence, but you should never present only the version favorable to you when
that version has been rejected by the factfinder.
Of course, it is essential in the Statement of Facts to
describe the record accurately. An answering brief that can show that you have
distorted the record, or quoted material out of context, or otherwise arguably
misled the court, can be devastating. The resulting loss of credibility will —
you may be sure of this — undermine the reception that every other part of your
This does not mean, however, that advocacy plays no role in
drafting the Statement of Facts. Quite the opposite. Although the tone
must at all times remain neutral and dispassionate, artful selection, emphasis,
and organization of facts can go far to shape a reader’s perception of the
The trick for the appellant is to make the reader feel
that the statement presents a fair description of what happened — an account of
the material facts leavened with a recognition of the presumption of correctness
that fortifies the factfinder’s resolution of factual disputes — yet, at the
same time, have the reader come away with the feeling that the outcome of the
trial court proceedings was none too sensible or fair.
Conversely, if you are the appellee, you will try to
suggest that the appellant has distorted the facts, which, when correctly
described, make the trial court outcome seem fair, reasonable, and almost
One final point regarding the content of the fact statement:
Every lawyer should know, though not all honor, the rule that you are limited to
stating the facts contained in the case record (even though you may believe that
the record is not what "really" happened). What is less often appreciated is
that the statement need not be confined to the historical facts — who did what,
and when. In addition, it can introduce relevant statutes, cases, and arguments
to the court, as long as it presents them in a descriptive rather than an
argumentative manner. It can also set forth — though carefully — what might be
called "legislative facts," even though those "facts" are not part of the trial
record, if they are background facts of the kind that a responsible judge would
consider in determining the appropriate legal rule. Such a submission — a
"Brandeis brief" — has an honorable place in American law; it is proper as long
as the line between legislative and adjudicative facts is scrupulously
How long should the statement be? Recall what Lincoln said
about how long a horse’s legs should be: long enough to reach the ground. A
statement should be long enough to tell the judges or Justices what they need to
know, and no longer. Sometimes that will mean four pages of a 50-page brief, and
sometimes 20 or 25.
In a case involving a plain legal issue, a short factual
account may suffice, followed by a more elaborate legal analysis. In a
fact-intensive case, on the other hand — a challenge to an administrative agency
ratemaking decision, for example — the statement may need to be much more
elaborate. It may have to set forth in some detail the relevant statutory scheme
and the structure of the particular regulated industry, followed by an account
of the course of agency proceedings. In such a situation, it may then be
possible, building on the factual foundation that the statement has laid, to
have a comparatively short legal discussion.
In general, a reader is unlikely to grow too impatient with a
statement that usefully sets forth relevant facts, even at some length. However,
if the statement seems to be loaded with irrelevant detail — either because it
actually is full of irrelevancies or because it is so poorly organized that the
reader cannot grasp the relevance of what is being said — then it is likely to
receive an unsympathetic reading.
One final point on this topic: The Statement of Facts is the
place to introduce the parties and to explain any shorthand you will use to
refer to them, plus the acronyms that you intend to use in the brief. Such
shorthand references can help keep the writing lively, which is an important
goal. Rule 28(d) of FRAP specifically advises counsel to "keep to a minimum
references to parties by such designations as ‘appellant’ and ‘appellee’." That
advice is but one example of a larger point.
Avoid Dense Prose
A mostly excellent brief recently filed in the Supreme Court
flirted with loss of its audience in the dense prose of the very first
substantive sentence of the brief:
The issue presented in this case — which arises under the
Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7101, et
seq. ("Federal Labor Statute") — is whether the most basic policies of that
Act should play any role in a major area of its administration, viz., in
determining whether a union acting as the exclusive collective bargaining
representative of federal sector employees — having been selected by those
employees through the secret ballot electoral processes provided by federal law
— is entitled to the disclosure of personnel records of bargaining unit
employees when such disclosure is "necessary for the full and proper"
performance of that representative’s collective bargaining
The writer of that sentence asked it to do too much. The
sentence introduces too many concepts without a pause. By contrast, one of the
authors a few years ago had a rare opportunity to use lively prose to make his
point, which was that an Arkansas highway tax unconstitutionally discriminated
against interstate commerce by exempting trucks carrying agricultural products
(which were by no coincidence predominantly local), while fully taxing those
carrying equally heavy shipments of other commodities (which came predominantly
from out of state):
There is an old riddle: Which weighs more, a ton of feathers or
a ton of bricks? While many find the question deceptive at first, the correct
answer, that a ton is a ton regardless of what is being weighed, becomes
irrefutably clear once explained. But in enacting and now defending the NR
Exemption, the State has managed to get the answer wrong — a ton of soybeans or
chicken feed is treated as though it weighs less than a ton of baked beans or
The reader is sure to understand the point and may even have
gotten a smile out of the arduous task of reading a brief.
Another point that frequently crops up with fact-intensive
legal issues (for example, the sufficiency of the evidence to support the
verdict) is whether it is best to recite all the relevant facts in the statement
or save them for the argument. There is no general rule, but be aware of this:
It is permissible to mention such facts briefly in the statement and then
explore them fully in the argument. Often such treatment will reduce repetition
and enhance the comprehensibility of your presentation. The section is called
the Statement of Facts, but that does not mean all the facts you rely on must be
Turning to a point of general application, you should be
especially careful how you refer to the court or agency below. If you are the
appellant or the petitioner, you are, of course, asking the appellate court to
reverse that court or agency. The appellate court knows that. It knows you
disagree with the outcome thus far. It will reverse in an appropriate case. But
its initial inclination, almost always, will be sympathetic to the fellow judge
who had to sit through the trial or to the agency that had to sift through the
entire record now being selectively quoted on appeal.
Criticism of the lower tribunal therefore should be stated
carefully and objectively (for example, "the trial court did not address the
‘waiver’ issue" or "the agency’s entire response to this argument was as
follows"). Although this advice may seem obvious, lawyers do the contrary often
enough that Judge Kozinski has been led to write, in a passage dripping with
sarcasm: "Chances are I’ll be seeing that [lower court] judge soon at one of
those secret conferences where judges go off together and gossip about the
lawyers. I f ind that you can always get a good chuckle out of the district
judge by copying the page where he is described as ‘a disgrace to the robe he
wears’ or as ‘mean-spirited, vindictive, biased and lacking in judicial
temperament’ and sticking it under his nose right as he is sipping his hot
Should the brief include a summary of the argument? FRAP does
not require a summary of argument. Supreme Court Rule 24.1(h) does, as do the
local rules of many — but not all — of the federal courts of appeals. Even when
the rules do not require a summary, it usually is a good idea to write one
except in the simplest cases. And it is always essential to good
appellate advocacy that somewhere in the brief — if not in a summary,
then near the beginning of the argument itself or even somewhere in the
statement — counsel provide an overview of the position they will be arguing.
Without this, it often becomes impossible (or possible only after an amount of
effort that exceeds what the judges are able to spend) to understand a
litigant’s exact position. If judges do not understand a litigant’s position,
they may well substitute a position that is easy to understand — but is
not what the party meant and is easy to rebut.
The Summary Follows the Argument
Experienced brief writers know that the summary of argument is
usually written after the argument itself. The summary ordinarily should have
the same structure as the argument. In our experience, the structure of the
argument tends to evolve over the course of drafting and editing. Writing out a
summary before writing the argument may serve the same useful function as
preparing an organizing outline, but a summary written in advance rarely will be
phrased and organized as well as one written after thinking through all the
ideas that come up during drafting.
Often, you may wish to begin with some background or
table-setting that will not be repeated in the argument section and therefore is
not, strictly speaking, a "summary" of any part of the argument. In such
instances, it is perfectly legitimate to combine the summary of argument with an
introduction, as long as the combination of "introduction and summary of
argument" is so labeled and does not cause the section to be too long (more than
four or five pages).
Supreme Court Rule 24.1(h) cautions that "[a] mere repetition
of the headings under which the argument is arranged is not [a] sufficient"
summary of argument. The same caution surely holds true in every court that
requires a summary. But it is equally important to remember that the argument
headings themselves will also serve a summarizing function. Some readers
of appellate briefs do skip over the table of contents and table of authorities
when they first pick up a brief, but many do not, and virtually all return to
the table of contents at some point when they try to understand the structure of
a brief. Thus, you should pay attention to the argument headings so that when
they are plucked out from the text and stand on their own, they will
comprehensively, comprehensibly, and (within limits) persuasively state the
Ironically, the most critical section of the brief — the
argument itself — is least subject to general rules or advice. There are two
primary determinants of the quality of the argument section of a brief: (1) the
quality of the arguments available and (2) the analytical and writing skills of
the lawyers involved. Nevertheless, some aspects of writing an argument are
specific to the appellate process.
Organization Above All
First, never forget the importance of organization. It is vital
to organize, not only the writing, but also the theory of the case. Appellate
judges know that they are setting precedents. They therefore worry about whether
the theory they adopt in one case will or will not apply appropriately to
slightly different sets of facts. Appellate lawyers should assist the judges by
having — and expressing — clear theories with reasonably clear limits.
Unfortunately, many appellate briefs are organized in ways that
do not advance an overall theory. One common but particularly unsatisfactory
form of appellate brief (whatever its merit in a trial court) is to quote
snippets from one precedent after another without fitting those precedents into
an overall pattern. Such filings are long on cut-and-paste, but short on logic
or explanation. Likewise, it is tempting (but equally ineffective) to use a
brief to take a series of potshots at the opinion below (in an appellant’s
brief) or the adversary’s brief (in an appellee’s brief or a reply brief), never
bothering to devise an overall theory of the correct approach to the
case. And it bears repeating that ad hominem criticisms of adversaries or
the decisionmakers below — as opposed to their legal positions — are
It also is desirable to explain the client’s position in a way
that makes sense from a policy (or common sense) perspective. Judges are
concerned about both the institutional and the real-world consequences of the
rules they adopt. Relatively few cases that reach appellate courts are
controlled so squarely by precedent that the judges have no wiggle room.
Accordingly, even if favorable precedent is available and you intend to rely
heavily on it, write the argument in a way that gives the judges confidence that
they should follow that precedent. That is far better than baldly telling
them that they must follow it — and daring them to disagree.
But be careful about policy forays. You cannot just make up the
law. Most appellate judges are offended by briefs that are merely naked policy
arguments and that pay no attention to such familiar judicial guideposts as case
law, statutory language, and (for most judges) legislative history.
Statutory language can be especially important. More than once
we have edited draft briefs that contained dozens of pages of material before
ever quoting the actual language of the statute being construed. That is
always a mistake in a true statutory construction case — one in which the
court is called on to determine the meaning of statutory language, rather than
construe precedents that have infused meaning into broad statutory generalities
(such as those of the Sherman Act).
If statutory language makes your position difficult, do not
hide the statute at the back of your brief. The court will see such placement as
a tacit admission that the statute cannot be construed your way. The judges may
think you want the court to ignore the statute. If the statutory language
is favorable, you have done your client even more of a disservice by not
beginning with that and telling the judges that Congress has made all necessary
policy choices. Judge Kozinski, in his advice on how to lose an appeal,
has written: "[S]tart out by discussing policy. . . . [I]nstead of talking about
what Congress did, talk about what it should have done."
An important tactical question that often confronts the drafter
of an appellant’s opening brief is the extent to which the brief should provide
responses, then and there, to arguments the other side may make in its brief.
Should the rejoinders be saved for the reply brief instead? Remember,
anticipating arguments entails some risk, especially if opposing counsel are
weak; you may put ideas into their heads that they would not otherwise discover
or articulate coherently. In general, however, an appellate brief that tries to
hide from the adversary’s best arguments is less effective than one that
confronts them. And, when the point has already been made by the trial court or
argued by your adversary at earlier stages of the proceeding, you cannot expect
to hide. You will almost surely want to address such hard points in the opening
brief, stating the issue in your terms rather than letting your opponent set the
Content is not everything, of course. Writing also matters in
an appellate brief and in the argument section especially. The point is not that
judges consciously grade style or decide appeals based on which brief they think
is better written. Rather, it is that judges must understand and remember your
position before they can agree with it — and a stylish brief usually is more
understandable and memorable.
Appellate judges are busy people. Judge Kozinski estimates that
he must read 3500 pages of briefs a month. There is not always sufficient time
for a judge to untangle convoluted sentences or dense prose. In addition,
typographical and grammatical errors can distract from more important matters.
And, if it is possible to write the brief in a lively fashion — without making
the writing style itself a distraction — the reader is likelier to comprehend
and remember it.
Here again, heated rhetoric and overstatement are harmful.
Perhaps the most common flaw in appellate briefs is writing in emphatic,
unequivocal, and conclusory terms. Such briefs, overconfident, even cocky, in
tone and uninformative in content, are likely to obscure what the judges must
really decide and what analytical steps are needed to reach a sound decision —
especially if the weakness in the argument has been glossed over in an effort to
make the position seem stronger than it is. This is not only unhelpful to the
court, but injurious to the advocate’s own cause. It is far better to confront
the issues coolly, honestly, and logically, guiding the reader lucidly down a
path that leads to victory.
Tone matters too. In a recent, highly publicized criminal case,
appellate counsel did a masterful job of identifying the issues and mustering
legal and factual support for his client’s position. He did so, however, in a
self-righteous tone, overstating accusations of prosecutorial misconduct,
belittling the trial judge, and portraying his client as the victim of a person
who, the jury had found, was herself the victim of the client’s serious criminal
The Perils of Overstatement
The lawyer, who is prominently affiliated with an elite East
Coast institution, should have been careful to adopt a respectful tone toward
the midwestern state judges he was addressing. We read the briefs before the
case was argued. We concluded that, if the judges thought the issue otherwise
close, human nature probably would make them want to rule against the
defendant because of his lawyer’s imperious tone. We are not mind readers, but
we do know that the defendant lost on appeal by a 2-1 vote.
The brief of an appellee or respondent — the "bottomside"
brief, in the jargon of appellate practice — has certain special features. The
bottomside brief writer has the disadvantage of not being able to introduce the
judges to the case and the issues; they will read the topside brief first. But
there are advantages too. The party filing second has a target to shoot at: the
appellant’s brief. And, except in cases involving cross-appeals, the bottomside
writer has prevailed below on all of the issues before the appellate court; that
litigant has the advantages that flow from having already had one decisionmaker
agree with its position. The bottomside party wins if the decision below was
right on the merits or if appellate issues were not preserved
The first item on the checklist of the writer of the bottomside
brief should be to ask: Was each of the arguments now being raised on appeal
properly preserved below? Were alleged instructional errors properly objected
to? Were the grounds now advanced for overturning evidentiary rulings the same
ones offered in timely objections at trial? In a related vein, is the legal
theory urged on appeal the same one presented to the trial court and, if not, is
there an advantage to be gained from the change?
Appellate rules usually give the bottomside brief writer the
option of dispensing with several of the features required in the topside brief.
There is rarely a need to repeat or correct the predictable recitations of the
basis for jurisdiction and the nature of the rulings below. On the other hand,
it is usually worthwhile in a bottomside brief to reformulate the questions
presented and write a competing statement of the case.
Some appellees seem to feel compelled to go further and to tell
the court at the outset that the other side has misstated the questions
presented and tendered a slanted version of the facts. That can be a bad idea.
The court often will know from reading your questions presented and your
statement that you believe the other side’s version is either inaccurate or
incomplete; you waste space and possibly goodwill by adding another sentence
with an accusatory tone. However, if you can demonstrate flat out distortion,
and it concerns something important, do so.
The other major difference between a bottomside and a topside
brief is that the writer of a bottomside brief already knows exactly what
arguments are being made on behalf of reversal. It is therefore appropriate and
— because the appellee gets no reply — necessary to take on those arguments.
This does not mean, however, that the brief should consist simply of a
point-by-point refutation of each of the appellant’s arguments. The aim of a
bottomside brief is not just to debate the other side. There also must be an
affirmative and coherent statement of the reasons why the decision being
appealed is correct.
Having prevailed below can also have its burdensome features.
Sometimes, to put it bluntly, the decision below is bad. It may be difficult to
defend in whole or in part. The topside brief will have mercilessly laid bare
its central defects. The bottomside brief writer then must offer other
ways to reach the same result. Occasionally, it may be wise to abandon the lower
tribunal’s reasoning and substitute a different and better rationale. In
essence, the appellee ends up defending, not the opinion that was written, but
the opinion that should have been written.
Most times, however, it is prudent to defend the lower court’s
approach and offer, in addition, either something explicitly called an
"alternative" approach or an embellishment on the decision below. Of course,
there are times when defending the rationale of the decision below will be the
only way to secure an affirmance. In cases coming from administrative agencies,
for example, the appellate court is not allowed to adopt a rationale that was
not the basis of the agency’s decision; similarly, a court reviewing a jury
verdict may not affirm on a basis never presented to the jury.
A Better Rationale
The recent decision in TXO Production Corp. v.
Alliance Resources Corp., 113 S. Ct. 2711 (1993), represents a triumph of
the tactic of presenting a new and better rationale on appeal. The highest court
of West Virginia had upheld an award of punitive damages that was many times the
compensatory damages; the award was therefore greatly out of proportion to the
actual harm suffered by the plaintiff. The state court had opined that the case
implicated no federal constitutional limit on the size of the punitive damages
on the dubious ground that the defendant had been "really mean." The Supreme
Court’s grant of certiorari suggested likely dissatisfaction with the West
Virginia court’s rationale.
Then respondent’s counsel went to work, scouring the record and
discovering a theory that, although it might have been barely hinted at before
the jury, seemed more likely to persuade the nine Justices in Washington: The
potential gain to the defendant from its alleged misdeeds much more
closely approximated the punitive damages award than the amount tha t the
plaintiff actually lost. Because counsel advanced this theory in the
bottomside brief (and argument) and showed to the satisfaction of the necessary
number of Justices that it had been preserved below, the West Virginia court’s
judgment (but not its reasoning) was upheld.
Finally, what about reply briefs? They are optional, but it is
the rare case — if any case at all — in which it makes sense to forgo the
opportunity to file one. One of us once argued on behalf of the government a
Supreme Court criminal case in which the petitioner simply did not bother to
file a reply brief. The Court decided the case 5-4 in the government’s favor,
with the unusual coalition of Justices Brennan, Marshall, Scalia, and Kennedy
dissenting. It would be easy to believe that the government’s sterling written
and oral advocacy assured the result no matter what the other side did, but one
must wonder whether an effective reply might have swayed one of the Justices who
formed the tenuous majority. It is a mystery why counsel passed up the chance to
have the last word in such a close case.
The reply brief must be (relatively) short, (relatively)
punchy, and selective. Sometimes it will follow the same structure as the
opening brief, but sometimes it will not. What it must do, to be
effective, is identify from the start one or more overall themes in the argument
or arguments with the best chance of winning and explain to the court where the
appellee’s brief, which it just read, went fundamentally astray.
The function of a reply brief is to respond to an adversary’s
arguments. The court can look back to your opening brief as a reminder of the
overall structure of your argument and to answer nagging questions. It is
therefore usually unnecessary to retrace all the steps of your logic in the
reply brief, and it is far more acceptable in a reply than in an opening brief
to concentrate on sharply focused (but polite) debate. Sometimes, however, your
adversary may have confused things so much that re-emphasizing the structure of
your arguments will be the most useful thing to do in reply.
If you must put a rhetorical flourish somewhere in your briefs
— and sometimes that may be useful — the beginning or end of the reply brief is
the place to put it. Rhetoric turns appellate judges off when they see it as a
substitute for analysis. By the time they read your reply brief, however, the
judges should know that you are prepared to analyze — and have analyzed — the
issues fully. Having, in a way, paid your dues, you have more leeway for a
catchy phrase or metaphor at the beginning of the reply brief. This may help
dramatize the central defect in the adversary’s brief, which the judge will have
just read; such a phrase at the end of the reply brief may be the last word the
judges read before they put down their papers.
Do not strive to write a pithy ending for its own sake,
however. Litigation gives its authors and editors a style sheet that advises:
"Formal conclusions are not worth the trouble. Start at the beginning, go to the
end, then stop." The same goes for reply briefs.
This Mayer, Brown & Platt article provides information and
comments on legal issues and developments of interest to our clients and
friends. The foregoing is not a comprehensive treatment of the subject matter
covered and is not intended to provide legal advice. Readers should seek
specific legal advice before taking any action with respect to the matters
"Copyright 1994 American Bar Association. All rights reserved.
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