August 03, 2011 Articles

Writing Your First Appellate Brief

Tackling an appellate brief is much different from your familiar ground at the trial level. You need to be ready to handle this new animal called an appeal.

By Haley Maple

As a young litigator, you likely are accustomed to drafting and responding to motions and memoranda on dismissal, summary judgment, discovery issues, and other issues that arise before trial. Not much tops the feeling of successfully obtaining summary judgment for your client or otherwise winning a motion or an argument. If those orders are appealable, however, you may end up on the receiving end (or if unsuccessful, the filing end) of a notice of appeal. If you are not in a firm with an appellate department, or sometimes even if you are, you may be asked to draft the appellate brief.

Tackling an appellate brief is much different from your familiar ground at the trial level. Not only is the style of argument different, but also very specific, and arguably unintuitive appellate rules govern every step of the way. Additionally, appellate judges approach an appeal differently from how a trial court approaches a motion. As such, you need to be ready to handle this new animal called an appeal.

First Steps
Before beginning the actual writing of an appellate brief, young lawyers should take the following first steps to prepare for writing it.

Procedural Rules
You should be familiar with the rules of civil procedure, rules of appellate procedure, the local rules for the appellate and trial courts, and any “internal operating procedures” of the appellate court (typically available on the court’s website). Such rules often are modified via separate documents. More importantly, these rules describe deadlines; brief printing requirements; required brief sections and outlines; page limits (or word limits); citation requirements (you may not be permitted to cite unreported opinions, for example); font requirements (note that at least in Florida federal and state courts, briefs typically require 14-point font, which can be tricky if, for example, an entire brief is written in 12-point font and then exceeds the page limit once transferred to 14-point font); and more. You absolutely must be familiar with what rules apply to your appeal and know those rules before you begin writing your appellate brief.

You immediately must obtain all applicable pleadings, which would include the order, motions, memoranda, and documents filed and related to the issue appealed and the transcript of any hearings on motions or at trial. In my experience, obtaining trial transcripts is far more expensive than I ever expected; contact the court reporter’s office for an estimate of the cost.

Admission to Court
You must be sure that you are admitted in the appellate court. If you are not, take immediate steps to gain appropriate admission.

Confer with Your Boss
Meet with your supervising attorney to find out the direction of the appellate argument. You do not want to spend time and client money researching and writing on an issue that either the client or supervising attorney does not want to address. Once you are immersed in the drafting process, do not be afraid to bring up and review with your boss additional arguments that you think are worth making.

Notice of Appeal
If you are filing the notice of appeal, it is imperative that the notice is timely filed and filed correctly. Rules governing the timeliness of an appeal often are strictly enforced, and failure to comply with the time-for-filing provisions likely will result in dismissal of the appeal. You must check your local rules at the trial and appellate levels. You may be surprised to find out that the notice of appeal is typically filed with the trial court rather than the appellate court. Know the amount of the filing fee and where and when the filing fee must be sent. Additionally, the local rules and rules of civil and appellate procedure have many requirements for the notice of appeal, which may or may not include the filing of certified copies of the order(s) being appealed. It is important to remember that the notice of appeal sets many procedures and activities into action.

The Record
You must know what items are contained within the record, whether and how you need to request that items be included in the record, and the deadlines for achieving these goals. Without an appropriate record, appeals may end up being dismissed or unsuccessful.

The Writing Process
Once you are intimately familiar with your case at the trial level and have assessed all of your appellate arguments, including reading and shepardizing case law relied upon by all parties, then begin the process of outlining your brief (or creating a “skeleton brief”). To create the skeleton for your brief, check the rules for what sections are required in your brief, including table of contents, table of authorities, requests for oral argument, statement of jurisdiction, and font certifications. I typically draft a brief by creating this very basic skeleton and using page breaks in the word-processing document to remind me of any required components of the brief. For example, I do not fill out the request for oral argument, but I create a page for the request that I can fill out later.

To create an orderly appellate brief, you must start with a solid outline. After you have your skeleton brief, begin outlining your arguments. Appellate briefs require very well written and concise headings that outline your arguments, as headings and subheadings may be all that some folks read. As a result, you may need more headings and subheadings than you originally thought. At this stage of drafting, I outline the arguments as the headings would appear in the brief, then place notes in the appropriate section. These notes can include a very brief statement of what I want to argue in that section, cases I want to discuss or distinguish, and parts of the record that should be addressed. At this point, you have created a solid outline. Do not be afraid to spend time outlining; a good outline creates the foundation for a great brief and will assist you in efficiently drafting a persuasive brief.

Standard of Review and the Facts
After building your outline for your brief, you can begin writing. It is helpful to draft your “standard of review” section first as it set the stage for your arguments and is important to the persuasiveness of your brief. Next, begin writing the factual summary. You only should use facts available from the court below and include citations to the record for each fact. I often draft the facts section, then go back through and add the record citations because adding such citations while writing can disrupt the flow of your drafting. Include key facts and necessary background, use appropriate and persuasive headings, but never be argumentative in the facts section.

Adding in Arguments
Arguments should be written concisely and in plain English; it should be easy for the appellate court to understand your arguments. Work necessary facts into your argument (along with record citations), and resist the temptation to “copy and paste” arguments from the lower court’s memoranda as it often results in typographical or conceptual errors. I’ve seen appellate briefs that clearly contained arguments copied and pasted from lower court filings where the appellate argument stated, for example, that summary judgment should be granted instead of stating that the lower court’s opinion should be affirmed or reversed under the applicable standard of review. Additionally, you need to weave the record into your appellate argument as copying and pasting simply leads to choppy arguments. Note what case law the court below relied upon and, depending on your position in the appeal, be sure to effectively support that reliance or distinguish the case law and explain why the lower court was right or wrong in its decision. Each section should appropriately transition to the next but should be able to stand alone if a judge wants to focus on a particular argument. If a judge wants to go back and read your discussion on one element or argument, then you want your brief to serve that purpose.

Avoid the temptation to provide a drawn out, beautifully drafted background on the history of U.S. Supreme Court decisions. Of course, you may need to discuss and outline the history of the law, but all too often I’ve received a draft brief that contains pages upon pages of discussion of basic legal principles. Judges are busy, and they do not have the time or desire to read extended background argument. If you do too much of this, you risk losing judges before you even get to your real argument.

Edit Your Brief
After you have your initial draft, go back through it and sharply edit the entire brief. If you do not use a particular fact in your argument that is included in your factual summary, then evaluate whether you can delete that fact from the fact section. Confirm that your argument complies with applicable rules. Delete what is unnecessary, tighten up your language, and discuss case law to the extent necessary. Finally, resist the urge to excessively quote sources or over-argue.

Over the Page Limit
Lawyers tend to like to talk and write. I’ve rarely had a first draft of a brief fall within the required page limits. How can you deal with this without losing the “meat” of your arguments?

The first thing you should do is see if you really are over the page limit. If you are using margins that are too big, for example, you may actually fall within the page limit. Also, knowing appellate and local rules is important when determining the length of your brief and how to comply with those requirements. These rules often exempt certain sections of your brief from the page count and may allow you to use a word limit instead of a page limit in certain circumstances. Sometimes, local rules allow smaller font for footnotes than that required in the text.

After such review, it is time for sharp editing if your brief is still over the page limit. Have you used short citations when appropriate? Have you eliminated passive voice? Can you edit your three-line headers to two lines? Are you unnecessarily quoting cases, statutes, or record excerpts? Are all of your footnotes necessary to your argument? Have you gone a little crazy with string citations? If you have edited your argument as sharply as possible, then it is time to evaluate the necessity of portions of your arguments or discussion to bring your brief within the page limit. You also should evaluate the possibility of filing a request for additional pages.

Final Steps
After your draft brief is complete, it is time to fill in the other required components, including the table of contents and authorities, and statement on oral argument. I do not recommend adding page numbers to your table of contents and authorities until your brief is in its absolute final form as you will simply have to redo all of the tables.

Once all of the necessary components are finished and the argument is complete and edited, it is time to hand your brief over to those who need to review, edit, and approve the brief. Be sure to hand the draft over long before the deadline for filing. Appellate briefs usually require strict printing and formatting that can take several days for a printing company to complete. Obviously, check with who you are reporting to and know when they expect the brief. Also, be cognizant of the potential for substantial revisions and the necessity of printing requirements.

Printing and Filing
In my experience, state and federal courts vary in their requirements of filing briefs, but all courts consistently have strict and specific requirements for filing. For example, the weight of paper may be specified. Additionally, these rules may govern the type and location of binding, the cover color and type, the number of copies, the use of recycled paper, and other such requirements. Complying with these rules can be confusing and time-consuming. Do not overlook this important step only to find yourself without enough time or appropriate arrangements for compliance with the brief-filing requirements. You also should pay very close attention to whether the deadline for your brief is the deadline for filing or serving your brief.

Although appellate briefing is a different beast from drafting memoranda and argument at the trial-court level, with the requisite knowledge going into the process, awareness of applicable rules of procedure, appropriate planning, and sharp editing, your first brief-writing experience can and should be an intellectually stimulating, satisfying, and successful one.

Haley Maple is an equity partner at Forizs & Dogali, P.A. in Tampa, Florida. In the Section of Litigation, Haley is a member of the Marketing & Membership Committee and is editor-in-chief of The Woman Advocate.