You’re a trial attorney who tends to settle your cases. Or maybe you’re a solo practitioner who generally practices before the state courts or possibly a recently licensed attorney who has placed a shingle outside your home in a rural part of the state. One of your clients has a case in the local federal district court. The case doesn’t settle, and you win at the trial level, which comes as no surprise to you because, as your mother always tells you, you’re a brilliant lawyer. Then, your opponent files a notice of appeal. You realize that this is the very first time that you will be handling an appeal since law school and your first case in a United States court of appeals. What do you do? Assuming you have excellent research and writing skills, you realize that you need to act quickly. This guide will help you get started.
First Things First: Know the Rules
Appellate advocacy is a technical and regulated process. You need to understand the rules that govern that process or you may risk losing some leverage to a more advanced appellate advocate. To stay ahead of the game and prepare your best brief, you should do the following:
- Read the paperwork sent to you from the court of appeals.
- Check the court’s website for additional “how to” information.
- Review the Federal Rules of Appellate Procedure and the court’s local rules, including the court’s internal operating rules, handbooks, and any other local rules.
- Find a sample brief from your jurisdiction.
The court’s paperwork will often include a compliance checklist and a schedule containing important deadlines. The D.C. Circuit, for example, provides a compliance checklist, which is available on its website. See Brief Compliance Checklist for Pro Se and Attorney Filers (under Attorney & Pro Se Information). The D.C. Circuit’s checklist includes the following information:
Brief formatting. This includes information about typeface, margins, spacing, binding, and covers.
Number of copies of the brief to be filed. All courts of appeals require counsel to file the original and a certain number of copies of the brief. That number depends primarily on local circuit rules.
The brief’s contents. There are several mandatory sections of the brief such as a table of contents; a table of authorities; statements regarding jurisdiction, issues, and facts; argument and summary of argument; conclusion; and signature block. Local rules vary slightly in these requirements. Be sure to read the local rules carefully. Courts are known to bounce briefs that are missing required sections.
Brief lengths and cover colors. Courts have different length requirements and require cover colors for different types of briefs. For example, the appellant’s principal brief must be filed with a blue cover and may not exceed 14,000 words; the appellee’s principal brief must not exceed 14,000 words and it must be filed with a red cover.
Scheduling orders. Some courts remain true to the filing deadlines set by the Federal Rules of Appellate Procedure. Others, such as the D.C. Circuit, issue a scheduling order that may bear little resemblance to the federal rules. The scheduling order establishes filing deadlines. Although the federal rules specify the timing for designating the record and filing the joint appendix, some courts also establish such deadlines in the scheduling order.
Sample briefs. Sample briefs are visual maps of the highly technical nature of brief format and organization. Perusing sample briefs in your jurisdiction while reading the rules is one of the best ways to ensure that you fully comprehend the rules.
Know the Record and the Law Inside and Out
All successful briefs come down to two things: telling a compelling story and persuading your audience. To do this well, you need to know the record (including evidence that distracts from your story) and the applicable legal authority. The catch is that you often need to understand the law to read the record with an eye toward storytelling and you need to know the record to determine the appropriate legal authority. The trick is to read and reread the record and to research and re-research the law.
Your goals, therefore, are two-fold: to relearn the trial record and to relearn the law. In relearning the record, it is imperative to reread the record (especially if it is short), create a one-page timeline with key facts, and insert key record cites in your argument notes. Preparation such as this will help you to find key facts for each principal argument. In relearning the law, you will want to reread all significant cases, identify the key factors from each case that allow you to distinguish or analogize that case to your case, and know any material change in the law since trial. Some attorneys find it helpful to prepare a card for each principal case that notes the facts of that case, the proposition for which it is cited, its procedural history, and the holding.
Unleash the Beast—Let Loose and Write That Brief
Anyone who has ever heard Bryan Garner speak is reminded of his use of Dr. Betty Flowers’s description of the writing process called madman—architect—carpenter—judge. See Bryan A. Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts 4 (2d ed.) (Oxford Univ. Press 2004) (citing Betty S. Flowers, “Madman, Architect, Carpenter, Judge: Roles and the Writing Process,” 44 Proceedings of the Conference of College Teachers of English 7–10 (1979)). This way of thinking of the writing process is useful because it calls for the author to compartmentalize the various writing functions to avoid becoming overwhelmed. The madman is the creative thinker. During this stage, Garner challenges us to think, without writing much. Use this time to bounce ideas off colleagues and develop themes and mantras for your brief. The architect is the structural thinker. During this stage, Garner asks us to structure the madman’s ideas into a logical outline. The architect’s structure may very well become the headings and subheadings. It is not until the carpenter arrives that the actual brief is written. The carpenter builds the draft with paragraphs, topic sentences, and supporting sentences in accordance with the architect’s structural blueprints. The judge cleans up the draft through the editing process, revising and correcting the draft’s grammar and citation format.
A well-written brief is often revised several times. Three editing suggestions will take you a long way toward crafting a cogent argument. First, think hard about the brief’s organization. Common wisdom tells us to lead with our strongest argument. If you find yourself leading with a weaker argument, make sure you have a good reason. Second, spend significant time refining the summary sections of the brief. The questions presented, summary of argument, subject headings, and conclusion are opportunities to summarize your argument and request for relief. Take every opportunity. Third, read the first sentence of each paragraph of your brief. If the brief makes sense that way, then it is well organized.
Check Yourself—Be on Alert for Changes in the Law
Make use of citation services. Westlaw’s Keycite and LexisNexis’s Shepard’s are the industry standards, with Bloomberg Law’s BCite as the market up-and-comer. These platforms—which not only cover statutes and cases but also often provide treatment for administrative regulations and decisions, patents, and a variety of secondary resources—allow you to determine the strength and validity of your found authorities. No matter what legal authority you are relying on in your brief, you can, in most instances, use these citation services to update the law you are relying on. Moreover, in an appellate brief for a United States court of appeals, this updating process may be especially important because the issues you are grappling with may be more complicated—and the stakes higher—than what you have encountered in the past.
Although online citator services (with their quick-and-easy color-coded functionality) are a blessing for the contemporary lawyer, it is important to remember that updating the authorities in your brief does not end at merely checking the citation symbol. This is because the assignment of citation symbols often reflects a judgment call on the part of the Westlaw and LexisNexis editors. Despite these editors’ best efforts to encapsulate cases, appellate judges do not always declare, with crystal-clear precision, just what the result is in a case. That is, some holdings appear to exist in a no man’s land between, for example, “some negative treatment” and “expressly overruled.” In an often-cited and confounding example, Westlaw has assigned a yellow cautionary symbol to the U.S. Supreme Court case Miranda v. Arizona,384 U.S. 436 (1966), while LexisNexis has assigned a red cautionary symbol to this same case. Furthermore, the actual meaning of a cautionary symbol is, at first blush, often hidden. For instance, a red cautionary symbol indicates that a case has been reversed or overruled for at least one legal issue, and so the case may still be labeled “good law” for the remaining legal issues. It is therefore incumbent on you—not your secretary or paralegal—to investigate the citing authority to determine whether your law is, in fact, still good law. Thus, no matter how elegant the construction, the arguments in your brief can (and will) dissolve to nothing if you haven’t adequately determined the exact status of your legal issue.
Using a citator service for your brief is also crucial because citators allow you to assess not just the validity of an authority but also its overall strength. How many courts have cited your found opinion? Was your opinion cited only in passing, or was it discussed at length? And, if discussed at length, is this discussion critical, neutral, or approving? Or has your opinion been discussed in a law review article or in another secondary resource? These are all critical questions, and citators can help you answer them. Westlaw, for example, provides “depth of treatment” bars for each resource collected within a Keycite check, while Shepard’s provides you with pinpoint citations to the relevant discussions contained within each of the citing authorities. As always, the burden is on you to determine whether the citator information is accurate. But when assessing the strength of your authority, a citator is certainly a powerful starting place.
Whether you are using Westlaw, LexisNexis, Bloomberg Law, or other service for the research portion of your brief, also keep in mind that you can set up alerts for all of the authorities you are relying on. An alert is an automatic updating service: If your authority receives any sort of treatment (negative or otherwise), the alert service will notify you of this fact via email, usually within 24 hours. Also be aware that alerts have become increasingly sophisticated over the years. For example, alerts can also notify you of recent court filings in your case, treatment by secondary authorities, and so on. Therefore, it always pays to set up alerts for the most important authorities in your brief.
Master Time-Saving Software Features
There has been more than one young lawyer who, the night before a filing deadline, has burned the midnight oil, furiously attempting to insert a table of authorities manually into an appellate brief. Please do not let this happen to you. When it comes to drafting these sections (and the other formatting aspects of your brief), know that there are a number of time-saving functionalities available in common word-processing software. Although it may seem inefficient to expend your time learning these functionalities (when you could be working on the substance of the brief), ultimately you will likely save more time overall if you master them—and master them well before your filing deadline has arrived.
As explained above, appellate briefs, unlike many other legal documents, require a number of special sections, including various types of tables and page number formats. Regarding the table of contents and table of authorities for an appellate brief, both WordPerfect and Microsoft Word provide tools that allow you to “auto-generate” these sections by “marking your citations” throughout your brief and then “inserting” the tables when you are finished. The inserted tables will automatically include the dot leaders and cited pages, and you can later quickly “update” your tables after revising your brief. Appellate briefs also require specialized page formats (e.g., blank pages and pages with roman numerals), and so you should familiarize yourself with your software’s page numbering functionality. For the technical specifics on page numbers, tables, and all other formatting issues for briefs, WordPerfect and Microsoft Word make available a long list of free (and constantly updated) users’ guides on their respective support websites.
Finally, both LexisNexis and Westlaw have developed integrated software that allows you to make the jump more easily between your research platform and your word-processing document, although your firm must buy this product separately. For example, LexisNexis boasts the impressive Lexis for Microsoft Office. This program actually “inserts” itself into your Microsoft Office Suite and, among other things, allows you to conduct research and Shepardize your brief from within your Word document itself, format citations in real time, and create a table of authorities in a more sophisticated fashion. For its part, Westlaw, in its WestlawNext platform, has introduced the very popular feature of allowing you to copy-paste text selections (e.g., from within a found case) into your word-processing document with a full pinpoint citation autogenerated in accompaniment and in proper Bluebook form. To streamline the formatting process for your brief, you should consider exploring the recent integrated software developments rolled out by Westlaw and LexisNexis.
This guide should lay a solid foundation and help the first-time appellate brief writer get started. Remember: Know the rules, know the law and the record (inside and out), let loose and unleash your writing beast, check and recheck your cites during the process, and save time by maximizing your technology. For a more in-depth discussion of these topics, consider reviewing Lofaso, Rosenberg, Hirt & Krech, A Practitioner’s Guide to Appellate Advocacy (American Bar Association 2010).
Keywords: litigation, appellate practice, Federal Rules of Appellate Procedure, local rules, Westlaw, LexisNexis, Bloomberg Law, table of contents, table of authorities
Anne Marie Lofaso is professor of law and associate dean for faculty research and development at the West Virginia University College of Law. Nicholas F. Stump is a reference and electronic services librarian at the West Virginia University College of Law.
Copyright © 2012, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).