Effective Storytelling in Appellate Writing

“Tell your client’s story and do it clearly, succinctly, and persuasively,” says LaFonda Willis, a former judicial law clerk for the U.S. district court and the U.S. court of appeals.

If you don’t, know that an unfavorable, inaccurate, or losing rendition of your client’s factual narrative will likely result. Remember that your client has a real opponent who is also trying to win the case. With that in mind, your goal—your mission—as an appellate practitioner should be to convince the judge to see things from your client’s perspective and to agree with you. If you have compelling facts, make sound arguments, and the law is not clearly against you, then the judge will be inclined to rule in your favor.

Nonetheless, as David Gossett, an appellate litigator at Davis Wright Tremaine LLP, points out, “compelling facts cannot overcome directly controlling bad law.” However, many cases are close calls. And, as Gossett explains, “when there is wiggle room, a judge will naturally want to rule for the more sympathetic party.”

Like any good fiction, good appellate writing should tell a moving story. And for an appellate brief, the story should contain the factual story and the procedural story, which are critical. In this article, the authors offer some tips and tricks on how you can present a factual and procedural narrative to help your client win the day!

Six Tips and Tricks for Presenting a Clear, Accurate, and Compelling Factual Story

1. Include citations to the factual record. Every sentence in your factual narrative should be followed by a citation to a specific page in the record that supports your statement.
2. Present the facts accurately and persuasively. State the facts accurately and in a way that favors your client, but do not omit legally relevant facts. Negative facts that work against your client will inevitably surface in your opposing counsel’s brief, so why not address them? When you omit these facts, you forgo the opportunity to frame them in a way that bolsters the case for your client. You may also put your credibility with the court at risk.
3. Use specific and descriptive words. Descriptive words make your factual narrative interesting and help to create a vivid picture of events in the mind of the judge—and law clerk, who is generally the first person to review, assess, and make a recommendation in your case. Another successful technique is to be deliberate and intentional about your word choice.
4. Evaluate every sentence for clarity, coherence, and maximum impact. Choose words that have impact and place your client in a positive light. Using hollow words that have no impact may disenchant the judge and frustrate the purpose of the brief. Once you have finished writing your brief, step back and consider whether your factual narrative comes across as a clear and coherent representation of what actually occurred in the case. However, do not jeopardize your credibility by deceptively characterizing the facts.
5. Ensure that each sentence in your factual narrative serves a purpose. Do not waste time or space using meaningless words that do not effectively tell your client’s story or get your client closer to the outcome you seek. Gossett puts it this way: “If a judge does not want to rule for you by the end of the statement, you’ve committed malpractice.”
6. Tell a complete story. If appropriate, tell the story in a chronological sequence. However, if you decide not to present your client’s factual narrative in a chronological fashion, do not tell an incomplete story that leaves your reader looking for information that he or she needs but cannot find.

Five Tips and Tricks for Writing a Compelling Procedural Narrative

Cherise Bacalski, an appellate practitioner in Utah, provides commentary on the importance of telling the procedural story. “Narrative,” she writes,

is just as important to the procedural story as it is to the factual story. In fact, Justice John Pearce, associate chief justice of the Utah Supreme Court, believes “the best practitioners weave them together. Or at least they understand how they should relate to each other.” This means that using descriptive terms, creating a vivid picture of events, and employing narrative tools is just as important to telling your client’s procedural story as it is to the factual telling.

Bacalski offers the following tips for writing a compelling procedural narrative:

1. Don’t confuse good storytelling with adverb, adjective, and action verb overabundance. A good story is about the picture you paint, the flow from event to event, the consistency in voice, and so much more. But it is not about using flowery adverbs, lots of adjectives, or out-of-place verbs or metaphors. As a narrative rhetorical device, understatement can be much more persuasive than overstatement. Keep that in mind the next time a “belligerent” opposing party “explicitly” “rebels against” a court order, the next time an opponent’s “outlandish” argument is “unbelievably” “convoluted,” or the next time the “inattentive” jury “fumbles the ball.”
2. When it comes to minor filings, depositions, and proceedings, use words and phrases that convey a sense of time instead of dates. An appellate court rarely needs to know the exact date a deposition took place or a trial began. This is because exact dates may not be important to appellate issues. Dates matter when timeliness matters to an issue in your brief. But even then, phrases can be more helpful than dates. For this reason, favor phrases like “three months after he filed the motion,” “exactly five years and two days later,” and “the day the jury trial began.”
3. Make the people, not the motions and orders, the actors. When we talk about court procedure, party filings, or jury findings, it can be easy to employ the passive voice. “A motion was filed.” “The motion was granted.” “He was found to be in contempt.” But even judicial narratives are better served by people—rather than filings—taking the lead roles. When we passively explain that “an order was filed” or that “a motion was filed asking the court to consider” something, we’ve not only asked our reader to fill in a blank—who filed it—we’ve also asked her to follow the motion’s story rather than the party’s story. This back-and-forth can be confusing—and it is ill-advised to ask your busy judge, or her clerk, to work extra hard to follow your brief.
   
   Every motion was filed by someone. Every order was filed by someone. Every finding was found by someone. Who? Active voice works unless a passive construction would better serve a story’s narrative arch. If “his objection was overruled” will help your reader to stick with “him,” then explain that “his objection was overruled” instead of that “the district court overruled his objection.” But in most cases, place the actors up front. It’s hard to follow a story if you can’t tell who did what. And many passive sentences omit actors altogether. So, highlight your actors—the parties, the court, the jury, or whomever—by giving them an active voice.
4. Write sentences that you can easily speak. If you struggle to read your work aloud, then your reader might struggle to follow it. The best narratives flow nicely, read easily, and feel natural in your mouth. Reading your work aloud is one of the best ways to catch sentences that are difficult to follow—or that break the narrative spell of good writing. Reading your work aloud can also help you find unparallel structures, add poetic touches, and employ the most intuitive punctuation. So, write sentences that you can easily speak, and the chance that your reader will be able to follow your story without backtracking will increase.
5. Finally, the court doesn’t need to hear the whole story. “The best storytellers are those who can lay out their argument in a way that every step follows naturally from the one before it,” Justice Pearce explains. But an appellate record contains hundreds or even thousands of pages of filings. Do you need to tell the court about all of them? The answer is a clear no. Highlight only procedures that matter to the appeal. Justice Pearce tells us that “it is important to tell the court what it needs to know about what happened, so it can understand your argument,” but it is unnecessary to talk about every discovery dispute if “the case isn’t about that dispute. It’s like Checkov’s gun. If you show it to me, I’m expecting that you will fire it.”

Conclusion

Legal writing is about communicating with the court in a way that advances your client’s goals and interests. Storytelling in appellate writing is an effective way to do just that! Use these tips and tricks in your appellate briefs to help convey your client’s position and point of view in a clear and compelling manner so that you can help your worthy client win the day!