It is not just the text of a brief that matters. Even the cover of a brief should be useful and not weird. The tables included in brief should be accurate, neat, easy-to-read, informative, and prepared well in advance. In terms of attention to detail, Mr. Rhodes observed that, when reading Supreme Court opinions, whenever he finds the Court quoting a party’s brief with a “sic” in brackets, that party usually loses.
Judge Diaz cautioned that an error or two will not “sink” a brief, but he also added that it is an appellate law clerk’s job to confirm that facts recited in a brief are accurate. If the law clerk concludes that the record does not support the facts recited in a party’s brief, appellate proceedings are unlikely to go well for that party. Judge Diaz also pointed out that a good story, for purposes of brief-writing, must always be grounded in the record, and he warned against trying to hide “bad facts.” Ms. Chaifetz explained that “bad facts” need to be addressed and should be included in an advocate’s brief, but she cautioned against “sign-posting” every “bad fact” with over-used phrases like “to be sure.”
In law school, many of us were taught that any fact addressed in the “Argument” section of the brief must also be included among the “facts” recited as part of the “Statement of the Case,” but one result of this teaching is that “fact” sections become too long. One work-around here is to present the facts included in a “Statement of the Case” in broad-brush fashion, such that the brief-writer can then go into the next level of detail for each fact as part of the subsequent “Argument” section of the brief. After all, if a fact is relevant to the argument, it will need to be repeated somewhere within the “Argument” section.
The panel seemed to reach consensus that it may be helpful to include an “introduction” section in appellate briefs, even though the Federal Rules of Appellate Procedure do not expressly contemplate a separate “introduction” section. Ms. Chaifetz, however, noted that many remember a time when appellate briefs did not have introductions, and she was not prepared to say that every brief should have an introduction. It is hard to do an introduction well and summarize a brief in under two pages. Ms. Chaifetz also noted that that it is sometimes possible to include the equivalent of an introduction in the “Statement of the Case.”
Regarding the “Statement of the Issues Presented for Review” section of a brief, Mr. Cooper suggested, in the brief-writing process, to imagine (or even test out) dramatic readings of each issue presented. Mr. Rhodes noted that the issues presented in a brief should be short, fair-minded, and persuasively framed. Judge Diaz warned against including too many issues in appellate briefs; doing so might enable an advocate to snatch defeat from the jaws of victory. There are seldom, if ever, eight or nine issues framed in a winning brief. Instead, one way to think about how many numbered issues to include is to ask yourself, “Will adding four or five additional issues add value if I lose the first issue?”
To sum up, Mr. Cooper observed that appellate briefs are more kabuki theater than “free verse.” Ms. Chaifetz explained that the “rules” of brief-writing (i.e., the style and structure you were taught in law school, as distinguished from the actual Federal Rules of Appellate Procedure) are made to be broken, but if you are breaking a “rule” when writing a brief, it is important to know why you are doing so. Judge Diaz added that, in writing a brief, the brief-writer should ensure that everything in the brief serves a purpose. That is by no means limited to the actual “Argument” section.