Writing Appellate Decisions Observations of a Rookie Appellate Judge

Vol. 53 No. 1

Judge Samuel A. Thumma previously served as a trial judge on the Arizona Superior Court in Maricopa County for nearly five years. The views expressed are solely those of the author and do not represent those of the Arizona Court of Appeals.

After 15 years in private practice and nearly five years as a trial judge, I just completed my first year of service as an appellate judge on the Arizona Court of Appeals. During that time, I read perhaps a thousand briefs in hundreds of cases and wrote nearly 100 decisions. My rookie year as an appellate judge has been a crash course on writing appellate decisions.

Although helped by concepts applicable to any good writing, writing an appellate decision is a unique style of writing. Appellate decisions are written in the same language as legal briefs, but in a very different and distinct dialect. Unlike legal briefs, there are no crisp rules for what is required in an appellate decision. In the rule-bound world of appellate litigation, it is no small irony that appellate decisions are nearly rule-less.

This article shares some observations from my rookie year on the art, science, and idiosyncrasy of writing appellate decisions. In doing so, some substantial caveats are in order: Every case is unique, every judge is different, almost every suggestion has exceptions, and what may work for nearly all cases doesn’t work for others. I also do not claim to be a gifted writer in any respect. When I do provide clarity in writing, my best hope is to do so in a meat and potatoes sort of way. Finally, the views here are mine alone based on my own observations. With these significant limitations, here are some of my observations on writing appellate decisions based on my rookie year as an appellate judge.

Keep the Audience in Mind

Keeping in mind the intended audience helps focus writing an appellate decision. Any appellate decision should have as the primary audience the parties and their counsel. Focusing on this key audience helps ensure that the facts are properly construed and summarized, arguments are properly characterized and addressed, and the relief requested is properly discussed. Focusing on this key audience also should enhance perceptions of legitimacy by the parties and their counsel. For decisions that cannot be cited as precedent (which are most of the decisions I write), my concept of audience focuses almost exclusively on the parties and their counsel.

In a decision that can be cited as precedent, the audience is broader and more diverse. Along with the parties and their counsel, this broader audience includes others who may interpret, cite, or rely on the decision. This audience includes members of the public who may look to the decision for guidance on how to proceed under the law, lawyers who are not involved in the case who may look to the decision to provide legal advice to clients, lawmakers, and other judges.

I recall the delight, when serving as a trial judge, of receiving a crisp, pithy appellate decision that nicely set forth the factual background, analysis, and holding of an issue similar to what I was being asked to decide. By contrast, I recall receiving an appellate decision that went on, page after page, with what might have been important factual details for the case (but weren’t for my purposes), lengthy and detailed analysis of legal issues that might be answered (but weren’t), and a conclusion that referred to dozens of prior pages stating something like “For the reasons set forth above, we reverse and remand for additional proceedings consistent with this opinion.” Appellate decisions in this latter category were not very helpful to me as a trial judge and, I am guessing, likely were not very helpful to other consumers as well. Being the product of my own experiences, I try to keep in mind these other audiences when writing appellate decisions, particularly for decisions that can be cited as precedent.

Grab the Reader with a Short, Tight, Clean Introduction

While in private practice, I viewed a short, tight, clean introduction essential for any legal brief. I wanted to grab the reader by the lapels, demonstrate why my argument was a winner, and provide a roadmap for the rest of the brief. Although my lapel-grabbing days are now gone, a short, tight, clean introduction can add great value to an appellate decision.

For many appellate decisions, a straightforward, almost mechanical, one-paragraph introduction can describe the nature of the case, the parties, the holding, and the outcome of the appeal. For more complicated decisions—particularly those involving lengthy procedural histories or numerous legal issues—an introduction of a few paragraphs can provide a helpful guide for where the decision is going and the path it takes.

As was my experience in private practice, I typically cannot write the introduction until the rest of the draft is nearly completed. Even then, writing the introduction is oftentimes the most difficult and challenging part of writing an appellate decision. But just like a good legal brief, a short, tight, clean introduction in an appellate decision can go a long way to set the tone for the analysis that follows and to provide a good and helpful path for the reader.

Create Structure with Headings

Although case-dependent, the structure of many appellate decisions can follow a fairly predictable format. The generic structure I have arrived upon is along the lines of Introduction, Facts and Procedural Background, Discussion, Attorneys’ Fees (if applicable), and Conclusion. There is no magic to this and there are times when I don’t use this approach at all, particularly for very short decisions. For most decisions, however, this structure is a useful, commonsense approach; typically parallels the structure of the briefs; and seems to work pretty well.

In multi-issue appeals, which represent most of the appeals I see, adding headings and subheadings within this structure can provide further clarity. Headings efficiently help with organization and provide clear starting and stopping points and, even more basically, provide breaks for the eye. Reading page after page of legal text, with no differentiation other than the occasional indent of a paragraph, can be tedious and challenging. Thoughtful, well-placed headings and subheadings can provide added structure with minimal additional length and, in the process, help the reader more clearly follow the topics being addressed.

Details Should Be Essential or Omitted

A brief statement of the facts and procedural background should provide a short overview of the case and set the table for the analysis that follows. This portion of the decision should be limited to information relevant to the issues presented for review and the analysis. Accordingly, and also throughout an appellate decision, details (dates, places, names, motions, rulings, etc.) should be essential or they should be omitted.

For example, an appeal following a jury verdict typically involves a discrete number of issues involving a discrete number of events occurring prior to, at, or after trial. In such a case, the details provided in an appellate decision should be essential to providing an overview of the case and the analysis of the issues relevant to the appeal. To comprehensively catalog everything that happened before, during, and after trial would not only significantly lengthen the decision, but it also would add clutter, detract from the analysis, and be a waste of substantial time and resources.

The standard I try to use is what I expect from good appellate briefs. If it is important that something happened on a specific date, I list the date. Or if intervals are important, I list the dates and intervals. But including details not relevant to the issues presented leads the reader down a path that almost certainly detracts from the proper focus and sacrifices brevity with no corresponding benefit. Making sure that every detail is essential yields a shorter, more powerful, and more persuasive decision. Less is more.

What Appealable Judgment or Order Was Appealed, How Is the Appeal Timely, and How Does the Court Have Appellate Jurisdiction?

Every appellate court has limits on jurisdiction. A decision that exceeds a court’s jurisdiction is most likely void, and void decisions are an enormous waste of time, energy, and resources (not to mention embarrassing). In an effort to prevent such a mess, my habit is to state in the appellate decision (1) the appealable order or judgment that was appealed, (2) that the appeal is timely (if, in fact, it was), and (3) how the court has appellate jurisdiction with citation to appropriate legal authority. I do this largely as a reminder to myself to confirm that the court properly has jurisdiction over an appeal. But there are other benefits as well.

Many orders are not appealable. Even for appealable judgments, until recent amendments, the timeliness of an appeal in Arizona had something of a Goldilocks feel: A tardy appeal was ineffective and a premature appeal was a nullity unless timely refiled or amended after entry of an appealable judgment or order. So, to be appealable, the notice of appeal had to be just right. Although appellate courts may have jurisdiction to hear challenges to interlocutory orders, that jurisdiction typically is discretionary and is not a true appeal. So whether the appeal is from an appealable order or judgment and whether the appeal is timely really do matter. Because they matter, I look to determine whether the order or judgment that was appealed from was appealable and whether the appeal was timely. If so, I include that information in the decision; if not, the decision addresses those issues to see where that takes the purported appeal.

It is also important to determine how the court properly can exercise jurisdiction. Although oftentimes it is easy to identify the authority upon which appellate jurisdiction is based, sometimes it is not. When the jurisdictional basis is not easily identified, it is even more important that the decision state the authority giving the court jurisdiction over the appeal. So, I cite the legal authority showing that the court has appellate jurisdiction, not only to make sure the decision is proper but also to show the participants in the case and later appellate courts facing a similar situation the basis for appellate jurisdiction.

Specify the Standard of Review and How Facts Are Construed

The standard of review and how facts are construed are the lenses through which any appellate decision should be read. These standards are really important not only in deciding the case but, for a decision that can be cited as precedent, in determining how the case may be cited. For example, an appellate decision affirming a trial court’s ruling on an abuse of discretion standard of review stands for the proposition that the trial court did not abuse its discretion, not necessarily that the trial court’s decision was the “correct” decision. By contrast, an appellate decision affirming a trial court’s ruling on a de novo standard of review stands for the proposition that the trial court was correct. These propositions are different and that difference can be meaningful. Accordingly, I specify the standards used and do so with citation to applicable authority.

Address or At Least Mention Issues Fairly Raised in the Briefs

Typically, an appellate decision is significant for what it says more than for what it does not say. This is particularly true for strangers to the case, who do not have the benefit of the briefs to know what was, and what was not, argued. For decisions that can be cited as precedent, and even those that cannot, expressly mentioning issues fairly raised in the briefs—even if not decided or addressed on the merits in the decision—is important.

For nonprecedential decisions, noting all issues raised by the parties is critical for perceptions of legitimacy and, more practically, to minimize motions to reconsider. If an issue is not going to be addressed because another issue is outcome-determinative, an appellate decision expressly stating that tells the parties and their attorneys that the court is aware of the issue but has determined the issue need not be resolved. Such a statement can appear in the text or a footnote that does not add any real length to the decision. By contrast, failing to expressly state that an issue that was briefed but is not being resolved (and why) may result in concerns about thoroughness that decrease perceptions of legitimacy. Such an omission also can yield avoidable, futile, and expensive motions to reconsider, resulting in additional briefing and delay with no realistic chance of success.

For a precedential decision, it is even more important to note issues raised but not resolved. Given the broader audience, it may be helpful for future cases to note what was raised but not addressed or decided. Failing to do so leaves it to the somewhat unenlightened guess of those not involved in the case to try to determine what was, and what was not, raised when litigating a subsequent case, when considering legislation, or when advising clients. Taking a little extra effort to provide that clarity can help prevent such costly and avoidable unintended consequences.

The Decision Should Clearly Specify the Relief Granted

In any appeal, someone wants something fixed. In many appeals, several parties want several things fixed. To benefit the parties, the attorneys, and the trial court, the appellate decision should specify with some precision the relief granted.

Oftentimes, the relief granted will be clear and obvious, but sometimes it will not. Does the decision affirm? Reverse? Affirm in part and reverse in part? Reverse with a remand? Reverse with a specific direction on remand? Reverse for an evidentiary hearing? Dismiss the appeal? For interlocutory appeals, at least in Arizona, is the court declining jurisdiction? Accepting jurisdiction but denying relief? Accepting jurisdiction and granting relief (and, if so, what relief)?

The decision should not leave an understanding of the relief granted to chance or leave the parties, counsel, or the trial court on remand to guess about what should happen next. To remove any doubt, I try to make sure that my decisions clearly specify in a sentence or two the specific relief granted.

Avoid Unintended Consequences

By definition, when issuing an appellate decision, I have confidence in the specific outcome in that case on the specific facts and legal arguments presented. But that decision may or may not provide any helpful guidance in resolving a different case with even modestly different facts or legal arguments. That limitation makes me obsessed about possible unintended consequences for cases that can be cited as precedent. That obsession has caused me to think a great deal about what can be done to avoid unintended consequences. Sadly, I have no perfect answer. I have, however, come to believe that clarity and brevity can go a long way in decreasing the odds of causing such mischief.

Clarity is always the goal in any legal writing, including appellate decisions, but is never fully attainable. That said, expressly stating what issues are being decided, expressly noting issues that are not being decided, attempting to write tight sentences and paragraphs, not deciding issues unless essential to the resolution of the case, and making plain the relief granted can go a long way in reaching the metaphysical goal of clarity. Along with clarity, I am also convinced that brevity can avoid unintended consequences. Each additional word in a precedential appellate decision increases the possibility of unintended consequences, even if in a very minor way, in construing or applying that decision later. So, avoiding unintended consequences is yet another reason to be brief when writing appellate decisions. Again, less is more.

Develop Your Own Writing Style and Preferences

Writing styles and preferences differ from person to person, an observation that is particularly true for appellate judges. I serve with extremely talented judges who have very different writing styles. One benefit of the way assignments are made on our court is that I served on panels with nearly a dozen other judges during my rookie year. That experience provides an amazing opportunity to look closely at various writing styles. I have learned a great deal from my colleagues and, along the way, I have tried to focus on and develop a writing style that is most comfortable for me.

The aspects and components of any writing style defy precise description. During my rookie year, however, I have settled on some common elements that I try to include in my decisions. Not surprisingly, those elements include the concepts discussed above: drafting and editing with the relevant audience in mind; starting with what I hope is a short, tight, clean introduction; focusing on structure and using headings; making sure details that are included are essential; specifying what appealable order was appealed, that the appeal is timely, and how the court has jurisdiction over the appeal; expressly stating the standard of review and how facts are construed; addressing all issues fairly raised in the briefs or stating why specified issues are not addressed; and clearly stating the relief granted.

Based on my observations, there are other stylistic elements I try to include when writing appellate decisions. For example, I try to vary sentence length. This is an attempt to avoid a bad habit in legal writing of using a morass of long, complicated sentences. As another example, when construing a statute, rule, contract provision, or other text, I quote the text at issue rather than paraphrase. I use this commonsense approach largely to focus attention on the exact text to be construed, rather than what a party claims the text might mean. As a third example, I work pretty hard to be terse and get to the key issues quickly to minimize the mischief of unintended consequences.

A far more mechanical aspect of writing appellate decisions that I had not thought about before my rookie year is considering and deciding how to address reoccurring style issues that can have more than one answer (i.e., writing preferences). There are many, many technical rules that can apply to writing and, at times, such rules can conflict in ways that cannot be reconciled. Although acknowledging Ralph Waldo Emerson’s advice that “a foolish consistency is the hobgoblin of little minds,” there are common writing issues in appellate decisions that merit resolution for the sake of consistency, not to mention efficiency and clarity. My perceived need for consistency is further enhanced, given that I have the luxury of law clerks who help me in the drafting process but by definition have different writing styles.

During my rookie year, for ease of reference, I began cataloging some of my writing preferences so that I can recall what I have done before when addressing the same issue. To be sure, these writing preferences have changed over time. From my eye, the decisions I wrote during my first few months as an appellate judge differ from my current style given changes (I would argue evolutionary changes) in my writing style and preferences. Even then, my writing preferences are works in progress and I anticipate will be for the rest of my life.

What, then, are examples of my writing preferences? Here are a few taken from a document creatively titled “Chambers Writing Preferences (working draft)” that is resident on my computer and available for easy reference by me, my law clerks, and my judicial assistant:

  • For defined terms and phrases, I assume no one reads footnotes, so I define such terms or phrases in the first use in text, not in a footnote.
  • The first reference to a statute (most often, in my court, the Arizona Revised Statutes) reads as follows “Arizona Revised Statutes (A.R.S.) section 00-0000 (CURRENT YEAR),” with a footnote stating: “Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated.” For subsequent citations, the cite is A.R.S. § 00-0000.
  • I capitalize “Governor” and “Legislature” and similar terms as a sign of respect to other branches of government (even though this is contrary to the Bluebook).
  • Particularly given my services as a trial judge, I never use phrases like “lower court” or “court below.” Many individuals (including trial judges and former trial judges) may take offense to such phrases, which are also easily avoided.
  • When possible, I avoid using personal pronouns such as he, she, his, hers, it. Personal pronouns often create ambiguity, can create confusion, and almost always can be avoided.
  • I try to make sure that no paragraph runs an entire page, an admittedly arbitrary rule. I do so because a paragraph that runs an entire page is a challenge to the reader and the mere appearance of a page of an appellate decision should not be challenge to the reader. When faced with a paragraph running an entire page, I either shorten the paragraph (which is almost always the better approach) or find a place to split the paragraph into two paragraphs and then do so.
  • My conclusions are declarative and not qualified: “Defendant’s convictions and sentences are affirmed.” NOT “For the foregoing reasons, having considered the parties’ briefs and oral argument as well as the record before the trial court, and in the circumstances, Defendant’s convictions and sentences are affirmed.” I do this to shorten the decision without losing substance.
  • There is no magic to any of this. I have found, however, that these and other writing preferences work pretty well for me. Accordingly, I have tried to capture these preferences and make sure that my appellate decisions use them consistently.
  • There are other issues that, from my perspective, merit a consistent approach. For example, is it “attorneys’ fees” or “attorney’s fees,” or does it depend on context? “e-mail” or “email”? “Order” or “order”? Although reasonable people can differ on the answers, I have arrived upon answers that work for me and then use that approach consistently in my writing. The broader point is to arrive upon an answer to these and other issues that arise repeatedly and then apply those approaches consistently in writing appellate decisions.
  • Finally, I have developed some quasi pet peeves, based on a variety of things, including my prior life experiences and my own mistakes and quirks. A few examples: (1) Don’t say “whether or not”; it’s simply “whether.” (2) Diseases are “contracted”; when parties have entered into a contract, they have entered into a contract, not “contracted” with each other. (3) Don’t say that a document “indicates” a proposition if the document actually says the proposition. Use “states,” “reads,” “recites,” or “provides.” Use “indicate” to mean that a document hints at or implies something. I am embarrassed to say there are others, although I am delighted to say there are not a great many others.
  • For every one of the preferences I use, I quickly concede that there are counterarguments that I should use a different approach. To me, however, the important thing is that I have decided on preferences for what I believe to be legitimate reasons, I have captured those preferences for ease of reference, and I use those preferences consistently in writing appellate decisions. Concededly, this is my own little attempt at foolish consistency, but with a hope that it adds to efficiency and clarity.

Conclusion

A joy for any kind of writing is that no one size fits all. That is certainly true for writing appellate decisions, where every case is unique, every judge is different, almost every suggestion has exceptions, and there are no crisp rules for what is required. Recognizing these substantial caveats, it is my hope that these observations from a rookie appellate judge can help further the art, science, and idiosyncrasy of writing appellate decisions.

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