The Last Word

Volume 27 No. 3

The Last Word Editor: Marie A. Moore, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., 909 Poydras Street, Suite 2800, New Orleans, LA 70112, (504) 299-2100. Guest Editor: B. Taylor Mattis is an emerita professor of law of the Southern Illinois University School of Law and a senior associate articles editor of Probate & Property.

Writing an Appellate Brief: A Primer for Transactional Lawyers

Many transactional lawyers at some point in time will draft or assist in the preparation of a brief for an appellate court. To write well, one needs a method.

Follow the Rules

The rules of the court to which the brief is addressed should be followed meticulously. These rules include required sections, such as Statement of the Case, Statement of the Facts, and Summary of the Argument.

Make Introductions

Although the court rules likely do not require introductory or initial paragraphs, writing them is an excellent starting point. Initial paragraphs should be one-paragraph distillations of each of your arguments, with major contentions perhaps developed in subpoints. Then draft an outline, using the subpoints as your outline’s major points, all of which will add up to the desired conclusion: affirm or reverse the judgment. You are now in position to draft the Argument section, which is generally considered to bear the ultimate task of an appellate brief: persuasion.

First Things First

If there is an issue with respect to the jurisdiction of the court below or of the appellate court, address the jurisdictional issue first. The appellant should first argue the strongest point for reversal. The appellee may consider two approaches: first to address the appellant’s weakest point or first to argue in favor of the appellee’s strongest point for affirming the judgment. Put your best foot forward.

Triangulate Paragraphs

Give the context first, the details later. Identify the area of law and perhaps describe its broad purposes and policy before narrowing your focus to specific facts. Think of the structure of your opening paragraph for each major contention as an isosceles triangle standing on its point. The broad base is uppermost; the details funnel down. For example, in each version of the arguments shown below the Indian tribe’s lawyer is contending that only the tribal court, not a state court, has jurisdiction to grant or deny the adoption of an Indian child, Thomas, by non-Indian parents:

Version 1:
The Indian child’s father left the reservation to attend college. The child’s domicile is determined by the father’s domicile. Since the father’s domicile remained the reservation, the child Thomas’s domicile was the reservation. The Indian Child Welfare Act confers exclusive tribal jurisdiction over a child custody proceeding of an Indian child domiciled on the reservation.
Version 2 (the triangle model):
Under the Indian Child Welfare Act the tribe has exclusive jurisdiction over the custody proceeding of an Indian child domiciled on the reservation. Thomas’s domicile is determined by his father’s domicile. Although the father and Thomas lived in a town outside the reservation where the father attended college, the father retained his domicile on the reservation. For this reason, the child Thomas’s domicile was the reservation.

In which version does the reader grasp more easily the relevant facts and contentions?

Keep It Simple

Use simple, declarative sentences, with the subject preceding the predicate. Consider the occasional use of a compound, complex, or other sentence structure to hold the reader’s interest. Brief-writing should be “[e]xpository writing at its best. It should move the emotions like good poetry; it should hold the attention like a good short story; it should convince like a good essay.” John T. Gaubatz & Taylor Mattis, The Moot Court Book 63 (1994).

Although the use of a string of prepositional phrases usually should be avoided, an excellent writer will know when to deviate from the norm. Don’t listen to the night music’s magic. Instead, listen to the magic of the music of the night.

Choose Your Words

  1. Use synonyms for variation to keep the reader’s attention.
  2. Notwithstanding Rule 1, avoid varying your technical terms in a way that may confuse your reader.
  3. Choose the appropriate degree of force. For example, consider the impact of “blood alcohol content of 0.08 grams per 100 milliliters of blood” versus “drunk.” Is your case strengthened or weakened by stating that the court “ignored” the evidence rather than pointing out that it “misconstrued” it?

Proofread

Have someone other than yourself proofread your brief. Any bright high school graduate may see flaws that the writer didn’t recognize. The writer should be the final proofreader, preferably after enough hours have passed to allow a return to objectivity. In this final reading, the writer should not merely check spelling and grammar but also should consider whether some reorganization might improve the work product.

Conclusion

Now go forth and serve and file your brief with pride.

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