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February 13, 2024

Making Non-Argument Sections of Briefs Persuasive

By: Devin C. Dolive

“All that glitters is not gold, and all that persuades is not argument.” That was the take-away from a panel discussion at the 2023 AJEI Summit in Washington, D.C. on “Making Non-Argument Sections of Briefs Persuasive.” Attorney Ben Cooper of Dickinson Wright in Phoenix, Arizona moderated the discussion consisting of the Honorable Albert Diaz of the United States Court of Appeals for the Fourth Circuit and two Washington, D.C.-based appellate lawyers: Samantha Chaifetz of DLA Piper (US) and Harker Rhodes of Clement & Murphy.

The panelists were unanimous that it is a mistake to view non-argument sections of briefs as somehow peripheral to your argument. Few judges will read an appellate brief—especially one over 30 pages—cover-to-cover as part of a single sitting, and you never know where a judge will start reading in a brief. Readers, moreover, have to come to their own conclusion that an advocate’s position is correct, and to help the reader reach such a conclusion, it is better to show than to tell. Mr. Cooper pointed out that you want the judges reading your brief to decide that you should win before they get to the actual “Argument” section. Ms. Chaifetz countered by saying, by the end of a “Statement of the Case” section of a brief (and before the “Argument” section), you will not necessarily be able to convince the judges that you should win, but you may be getting the judges to think that perhaps you should not lose.

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.

Devin C. Dolive

Burr & Forman LLP

Devin C. Dolive is a partner at Burr & Forman LLP in Birmingham, Alabama. He has worked in the firm’s general commercial litigation, labor & employment, and construction practice groups and handles all stages of litigation, including appeals. Mr. Dolive is a graduate of the University Virginia School of Law and of Amherst College and serves as a member-at-large for the Council of Appellate Lawyers.

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