Appellate Insights

The author of a brief must be both storyteller and teacher.  Judges read hundreds of briefs each year.  Capturing their interest and making principles clear and memorable is critical to persuasion.

• If your brief covers multiple, disparate legal issues, do not bog down your statement of facts with every fact relevant to every issue.  Focus on telling the key story, and save tangents that are relevant only to one of the arguments for that argument section.

• Appellate judges (and their law clerks) are strangers to your facts, and may well be strangers to your area of law.  Don’t allow your writing to reflect your own familiarity with your case.  Simple and clear wins.

• Spoon-feed every step of your argument, moving from general to specific propositions with no leaps.  If a judge needs to pause and wonder “but what about …,” it will be more difficult to get the judge back to agreeing with you.

• Use relatable examples and analogies—drawn from the real world or popular culture—to keep the court’s attention and to make abstract concepts more vivid and obvious.

▶ The practical message.  Appellate cases are typically won or lost on the briefs.  Like any other good storyteller or educator, keep your writing interesting and straightforward.