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Professional Development

Road Map to Success for Legal Writing before a Government Agency

Michael Kilpatrick Morton

Road Map to Success for Legal Writing before a Government Agency
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Legal writing is an understated art contributing to advocacy. We asked five different attorneys to provide recommended strategies for advocating through legal writing in various areas and stages of the law. 

This is the third part of a five-part series.

An appeal filed before a government agency is a necessary, tedious step to exhaust all administrative remedies before seeking judicial relief. However, someone who has a matter before an administrative agency has an underutilized opportunity to prevail through writing without stepping inside a courtroom.

The following are some suggestions for writing a successful administrative appeal.

Hone In on the Policies behind the “Intelligible Principle”

You’re likely advocating for your client based on an action taken by the agency you and your client allege was wrongly decided. Consider the policies behind the “intelligible principle,” which is why the legislature granted the agency this decision or rule-making authority. Focus on the intelligible principle in your brief before the agency rather than the decision it made. For example, a state’s tax department alleges your client’s business service owes sales tax on services rendered the preceding year. Your client believes her business service is statutorily exempt from the sales tax. You assert an argument relating to the public interest. As a compromise, the department imposes an assessment equal to 30 percent of the amount of sales tax your client allegedly owes. Now, use the statutory analysis approach below to help your client win on the merits.

Analyze the Relevant Statute

Start with analyzing the statute’s “who,” “what,” “where,” and “when,” giving the agency jurisdiction over the matter. In your brief to the agency, highlight how the statute grants authority to the agency and how the agency’s decision veered outside of that authority. If the statute in the tax scenario above only grants the agency authority to make a yes or no decision—your client should have been collecting sales tax or not—don’t argue the 30 percent assessment is too high. Always advocate for the interpretation that the agency didn’t have the authority to make that decision.

Determine If the Legislative Intent Helps You

Research the legislative intent for the creation of the applicable statute to ascertain the statute’s “why.” Study the minutes from the committee hearings where the proposed legislation was debated. Often, the agency will have testified during those hearings. In your brief, include statements made by legislators and the agency as to why the legislation and delegation of authority were necessary, if applicable. Additionally, if you seek judicial review later, you will have laid a solid foundation for the court’s consideration concerning the government’s authority in your case.

Don’t see administrative appeals as a waste of time—use them to your client’s advantage before heading to court.