- Put yourself in the judge’s shoes all the way. That will help you grasp the relevant differences between judge and advocate, and so will enable you to write a brief that will communicate your position effectively.
Successful communication requires the communicator to understand how much the person or persons to whom he is communicating understands. If the communication takes the form of an appellate brief, the writer must understand the limits of understanding of the appellate judges, along with the concerns of the judges.
Communication is usually straightforward among peers; they understand each other; they know where each other is “coming from.” The problem that the appellate brief writer faces is that his or her intended audience does not consist of other appellate brief writers, or indeed of other practicing lawyers. Many appellate judges were practitioners once, but many were not; and even those who were are unlikely to have been experts in the particular area of law in which a case arises, unlike (in all likelihood) the appellate brief writer. Moreover, modern people are good at playing different roles; and the role of the judge is very different from that of the practitioner. It is as a judge that a judge reads a brief, not as a former practitioner.
The judge is a decision-maker. Everyone knows the distinction between an advocate and a judge. But it’s just the beginning of the differences in perspective between the two roles.
So, my essential advice to the appellate brief writer is to put yourself in the judge’s shoes all the way, as it were. That will help you grasp the relevant differences between judge and advocate and so will enable you to write a brief that will communicate your position effectively.
You will, if your imagination is working properly, understand the following things about appellate judges:
So now that you know what you need to know about the bench, the specific advice that follows should be easy to understand and to follow.
Do some online background research for information that will help you to help us to a realistic understanding of your case.
I have been doing this in some of my cases of late and have been criticized that in doing so I have been “going outside the record.” It would be a just criticism if I was looking for adjudicative facts on the internet, the kind of facts that benefit from being tested in an adversary proceeding governed by the rules of evidence. But I am not. It should be obvious (if you imagine yourself an appellate judge) that much that goes into a judicial decision was never a part of any evidentiary record. The judicial mind is not a tabula rasa. It is informed and enriched by a judge’s experiences, impressions, temperament, and outside reading, which increasingly is the reading of online materials. The internet is open-source; it is as great a resource for lawyers as for judges—and is underutilized by both.
Another way to think about internet research: When you’re writing your brief, think of the questions that a layperson would ask about the case; a judge is likely to have the same or similar questions.
Wherever possible, use pictures, maps, diagrams, and other visual aids in your briefs. Some lawyers seem to think a word is worth a thousand pictures. The reverse, of course, is true. Seeing a case makes it come alive to judges.
Many years ago I was on the panel that heard an appeal in a trademark dispute between the Indianapolis Colts and the Baltimore CFL Colts. The briefs described the trademarked products (such as hats and T-shirts) but did not include pictures. At the oral argument, one of the judges (OK, I confess—it was I) asked the lawyer for the Indianapolis Colts whether he had any of the products with him. He was a little startled but went to his briefcase and pulled a pair of hats, one an Indianapolis Colt hat and the other a Baltimore CFL Colt hat. The hats looked identical. He won his case at that moment. He was lucky that he was asked that question. He would not have needed luck had he included a photograph in his brief.
Avoid jargon: business jargon, industry jargon, computerese, and other technical jargon (and yes, economic jargon, too), and legal jargon. Avoid legal clichés, such as “plain meaning” (typically, and futilely, argued by both sides in the same case!).
At an oral argument last year, baffled by the briefs in a case involving the Telecommunications Act of 1994—briefs bristling with esoteric legal and technical jargon—and we do not hear cases under that act often enough to become experts in it—I said to one of the lawyers that my law clerks and I had read the briefs and had no idea what the case was about, and would he, please explain it to us in words of one syllable. Like the Indianapolis Colts’ lawyer, he was a little taken aback but complied, and, being, in fact, an excellent lawyer, he gave a perfectly lucid, totally jargon-free explanation of the case, and the judges were very happy (and he won). But again, he was lucky that he was asked to explain his case, and he would not have needed luck had he realized in writing his brief that generalist federal judges do not have the level of understanding of members of the Federal Communications Commission.
Do not beat us over the head with statutory language and precedent. Your case, unless it is a federal criminal case, probably would not have reached the court of appeals if it had been clearly governed by a statute or a case. I am not saying that you should ignore relevant statutory text and precedents, but they are more likely to narrow the area of contestable disagreement than to resolve the case. You will have to extract the purpose of the statute and excavate the policies underlying the precedents to make a cogent argument that the statute and the precedents support (and, if you are lucky, compel) the outcome that you are urging.
And—a closely related point—do not exaggerate the cogency of reasoning by analogy by trying to persuade us to base our decision on a previous case, especially a case from another field of law. The value of analogous cases lies in the reasoning or policies that the opinions disclose that may bear on your case, and it is the reasoning and policies that you should emphasize.
Speaking of precedent, go light on district-court citations, remembering that they are not precedents. This is not said in disrespect of district judges but in recognition of the fact that if district-court decisions were given precedential effect, there would be no uniformity of federal law within a district or circuit.
Be brief. Judges do a lot of reading. (Holmes once said that he was paid to read—that was his job.) We get tired or bored, and some of us tend to start skimming when we encounter a tedious, repetitious brief.
Two last points. One, do not omit from your brief, especially if you are the appellant, mention of the strongest points that you know your opponent will make in his or her brief. Often I read the appellant’s brief and think, how could the district judge (or administrative agency) have made such a mistake, committed such an injustice! And then I read the appellee’s brief and realized that the appellant’s brief had omitted the points that showed that the lower-court opinion, whether ultimately persuasive or not, was at least reasonable. And when that happens, one loses confidence in the appellant’s position.
When a lawyer plans to put his or her client, a criminal defendant with a criminal record that can be used to impeach his or her testimony, on the stand, the lawyer typically will bring out his or her client’s record on direct examination to pull the sting by showing to the jury that he or she isn’t afraid of the fact that the client has a record. And then the prosecutor’s effort to use the record against the defendant on cross-examination is likely to fall flat (and indeed may be blocked by the judge as improper harping on the defendant’s record). Similarly, when the appellant’s brief “fronts” the weaknesses in his or her case, and deals with them as best he or she can, that prevents the appellee from making a seemingly devastating riposte.
Two, do not forgo the opportunity to file a reply brief. The appellee is bound to make some halfway decent points in rebuttal of your appeal. Don’t let him or her have the last word.
And that is my last word on this important and challenging subject.
This article originally appeared in the spring 2010 issue of the Appellate Practice Journal. The Appellate Practice Journal is a benefit of membership of the ABA Section of Litigation Appellate Practice Committee. Learn more about the Section of Litigation.