Attorneys who rarely practice in the appellate courts may feel overwhelmed by the prospect of writing an appellate brief. Here are a few helpful tips:
1. Write for the audience. A fundamental rule of writing is to write for your audience. An author of children’s books uses a different style from a writer for The New Yorker. If those two examples are at the opposite ends of the spectrum, an appellate brief is in the middle. Lawyers often want to appear erudite. That can lead to long and complicated briefs. But judges are busy people. Every year, about 8,000 appeals are filed in the Pennsylvania Superior Court. Superior Court judges read hundreds of briefs a year. They want to be able pick up a brief and quickly understand the facts and issues, know if the court has jurisdiction, and learn of any binding or conflicting precedent.
Keep the judge in mind when writing a brief. Short declarative sentences and paragraphs are better than long ones. Avoid the passive voice. Use the table of contents and substantive headings to guide the reader. In short, make it as easy as possible for a busy judge to understand your argument.
2. Don’t belabor the facts and procedural history. Trial lawyers know their cases inside out and backwards. It is tempting to write the facts and procedural history with mind-numbing detail. But larding up an appellate brief with irrelevant facts and filing dates will only put the judge to sleep. If the date is important, include it. Otherwise, leave it out.
Many lawyers draft briefs starting with the facts. But I recommend writing the facts after researching and outlining the argument. Understanding the argument will help narrow the statement of facts to only those that are relevant to the issues before the court.
3. Stick to the record on appeal. When sitting in appeals, the Pennsylvania Superior and Commonwealth Courts are error-correcting courts. Their review of a trial court’s decision is limited to what is in the trial court record. Stick to the record and be sure to include record cites when referencing statements made at trial. See Pa.R.A.P. 2119(c), 2132.
4. Establish and maintain your reputation and credibility. Both new and experienced lawyers have reputations to maintain. Be careful about including anything in an appellate brief you might regret later. Snarky comments about opposing counsel or the judge are unwise and often backfire. Opposing counsel could be an appellate judge’s second cousin. The trial judge could be her golf buddy. Take the high road.
Try to avoid the trap of labeling opponents’ arguments as “frivolous” or “ridiculous.” Pejorative labels are unpersuasive. They can also backfire by suggesting that an argument is so weak that name-calling is the only option. Rather than rely on adjectives, use pertinent authority and logic to show why the court should reject the other side’s argument.
5. Do great research and let it show. A winning brief is supported by thorough legal research. Arguments are more credible when they are supported by pertinent authority interwoven with the facts of the case. Do not just cite a case ─ include a descriptive parenthetical. Avoid string cites and block quotes, both of which busy judges often skip. Be sure to distinguish negative controlling authority.
6. Update research before filing and again before oral argument. It takes a long time to write a brief. There may be many weeks or months from the initial research to filing. Take the time to update the research before filing and again before oral argument. It is embarrassing to have an appellate court judge ask why an issue isn’t controlled by a case the court decided the week before.
7. Edit, edit, and edit again. After reading a brief many times, our brains know what is coming, so they jump over minor errors. Use computer programs like MS Editor, Grammerly, and BriefCatch to edit draft briefs. It also helps to have someone unfamiliar with the case read the brief with fresh eyes. Finally, an old book editor’s trick is to use a ruler. Editing a brief line by line with a ruler is a great way to spot mistakes and typos.
8. Avoid filing on the last day. It is easy to underestimate the amount of time it takes to get an appellate brief in fileable form. Editing, cite-checking, proofreading, creating a table of contents and table of authorities—all these tasks take longer than many lawyers appreciate. By planning to file a few days before a brief is due, the process is less stressful, and the final product will be better.
I hope these brief writing tips are helpful. Look for future blog posts for more information about appellate brief writing and other topics.