Tips of the Trade: Do’s and Don’ts of Appellate Brief Writing

The Litigation Section’s Appellate Practice Committee held the first installment of a two-part series on April 7, 2023, featuring insights and advice from seasoned appellate practitioners. The roundtable discussion was moderated by Jimmie Herring Jr., permanent attorney adviser for the Houston Immigration Court, and included panelists Carly M. Edelstein, judge of Ohio’s Tenth District Court of Appeals; Robert M. Dato, California certified appellate specialist; and Ryan McCarl, a partner at Rushing McCarl LLP and the author of the forthcoming book Elegant Legal Writing.

During the discussion, panelists covered best practices in appellate brief writing, sharing tips on becoming a compelling advocate. They emphasized the importance of style and structure in crafting effective briefs and offered resources for developing a personal writing style. They also identified common pitfalls in appellate brief writing.

Be a Compelling Advocate

Being an effective advocate requires more than just expertise in the law and a comprehensive understanding of the case. Appellate attorneys must present a compelling story that resonates with judges, backed by thorough research. The role of a judge is to reason his/her way to a just outcome while adhering to normative and precedential constraints. Effective briefs should aid the judge in the decision-making process. Because oral argumentation comprises only a small portion of appellate work, writing is the primary means for advocating on behalf of clients.

The panelists identified several habits and techniques that can help attorneys craft more effective briefs:

1. Thoroughly understand your argument before beginning to write.
2. Be aware of the court’s preferences regarding technical style choices.
3. Develop your writing style by reading a variety of materials.

Master the Law and Your Case Prior to Writing

Empathizing with the judge as both a decision maker and a reader enables an attorney to craft a compelling narrative that prioritizes (a) clarity, (b) efficiency, and (c) readability. Without a comprehensive understanding of the case, you cannot effectively assist the court in its decision-making process.

Clarity. Before drafting your brief, be prepared to summarize your position in a 30-second elevator pitch for a layperson. This practice ensures that you fully grasp your arguments and can communicate them clearly. Avoid complex vocabulary and use short, simple sentences. This approach often requires significant editing, but mastering your argument beforehand can reduce your workload and simplify the process.

Efficiency. The introduction is often the most crucial part of your brief as many courts use it to prioritize cases. Summarize the case and your client’s position in a single page. If you cannot do so, you may not have sufficient clarity or understanding of the case. A one-page summary also helps maintain focus during the writing process.

Readability. Familiarity with your argument before writing facilitates the organization of your brief. Establish a clear structure by building “containers” for information that provide context, relevance, and importance. Organize these containers logically, addressing threshold issues before merit issues; presenting stronger arguments first; and arranging arguments in terms of time, causality, and standard elements of a claim. Utilize headings to break up your writing visually and to reduce cognitive load for the reader. Headings should clearly state legal conclusions and their rationale. Remember, your table of contents should give the court a road map. It may be the only thing a judge reads before oral argument.

Make Technical Style Choices That Improve Your Brief’s Persuasiveness

When deciding whether to use footnotes, in-text citations, cleanup parentheticals, or parenthetical explanations, consider the preferences of the court you’re writing for as these stylistic choices can impact the visual appeal and flow of your brief. Check your local rules. One court’s preferences may not be favored in another appellate court.

Other practical pointers to consider:

• Avoid cleanup parentheticals. In an adversarial system, mistrust often exists between parties, and the court or opposing counsel may need to review your citation to understand what was edited.
• Courts prefer case citations in the body of the text rather than footnotes. Use footnotes for bibliographic information or to reference citations to reduce clutter and improve flow.
• Use parentheticals to clarify citations, particularly for concurrences or dissents.
• Always be transparent about the source and the significance of your cases.
• Allocate ample time for editing. Clarity, efficiency, and readability are often achieved during the editing stage.
• Focus on reducing complexity at every step, and retain only the details and facts helpful to the judge.

Develop Your Writing Style Through Reading

Your writing style will evolve over time. Reading various types of writing, including nonlegal materials, can help you identify your preferred style. Diversifying your reading materials with quality prose from literature can keep your writing fresh. Recommended resources for further reading include works by Brian Garner, Point Made by Ross Guberman, and style guides like Style: Lessons in Clarity and Grace by Joseph Williams. Understanding your style preferences enables you to compose clear, effective, and readable briefs in an authentic voice.