Today, at the ABA Midyear Meeting in New Orleans, I sat in on one of the best CLE programs that I have heard in a long time, "Preparing an Effective Appellate Brief" (sponsored by the Council of Appellate Lawyers of the ABA's Appellate Judge's Conference).
I wasn't taking notes, but instead "tweeted" updates live from the session with what I thought were the more interesting points. Rather than prepare a narrative summary, I'll simply repost the tweets I posted:
- At "Preparing an Effective Appellate Brief" sponsored by Appellate Lawyers Council.
- Distinguished panel of judges and advocates at "Preparing an Effective Appellate Brief" sponsored by Appellate Lawyers Council, including Judge N. Randy Smith from the 9th Circuit and Justice Bernette Johnson of the Louisiana Supreme Court, and Roger D. Townsend. Mitchell C. Tilner is moderating the discussion.
- Judge Smith (Ninth Circuit): your brief may be your only chance to convince the court (not all cts can afford all cases oral arguments). Hallmark of an effective brief: "brief, brief, brief" ... and the Introduction.
- Justice Johnson, Louisiana Supreme Court: perfect your appeal, stick to the Rules; deadlines, typeface, indexes, be courteous.
- LA SCT may return briefs for "discourteous" language! [Barista's note: While other jurisdictions may not have this rule, it's still a good one to adhere to.]
- LA SCT holds oral arguments in all cases, and justices consider it very important. [Barista's note: not true in all jurisdictions, so often your brief if the only chance to talk to the court.]
- Judge Smith: "If we think you need more briefing, we'll ask for it." (So try to avoid requests for more space.) Justice Johnson agrees.
- Justice Johnson: try not to start with "this case is complicated" (courts know that; that's why you are in the court of appeals).
- Question from audience: Does the number of issues raised affect your initial perception of an appeal? Judge Smith: of course, remember that appellate judges are "reading and writing machines," so choose your issues narrowly, and try to limit the number of points raised.
- Judge Smith: try to state issues like Bryan A. Garner suggests: state it simply, or do a "deep issue" statement if facts or background is critical.
- One suggestion is to keep it simple in intermediate appellate courts, use deep issue method for courts of last resort.
- Judge Smith: make sure that the facts you think are in the record really are there (esp critical for trial counsel, who he finds tend to believe that facts that they know are actually in the record, even if they are not).
- Judge Smith: law clerks like nothing more than finding unfair or overreaching Statement of Facts. Justice Johnson: we use law clerks to verify statements and citations in briefs.
- Question: how about italics and boldface in briefs - effective? Answer: Not that important. What is key is deemphasizing bad facts. But you must deal with adverse facts and not ignore them. Put them in context to help court understand why they don't matter. [Marcus Landsberg adds: "Bold means you don't have faith the rest of your argument is read. It means "If you skip the rest, at least read this".]
- Judge Smith doesnt like "talking footnotes." If it is important, put it in text. Justice Johnson agrees: Use notes for citations. Panelist: some opinion writers are now putting all citations in footnotes.
- "Short" is important to Judge Smith: short sentences, paragraphs, quotes, citations. Focus on standard of review, and weave it throughout your brief. On ideologically diverse courts such as the Ninth Circuit, the one area the judges might all agree is the standard of review. [Rebecca Copeland adds: I was just telling my UH first year students this.]
- Putting in long quotes from record or transcript...effective? Short, dispositive excerpts, 1/2 page max. It's OK to weave quotes into regular text. One technique with essential block quotes is to use an introductory phrase summarizing it before the block quote. Judge Smith: put yourself into the reader's position - block quotes are hard to read.
- Justice Johnson: a lot of courts are using e-filing (LA SCT does not yet), so be sure your brief reads well on screen as well as on paper. One suggestion from panelist: a good book to help deal with this issue is "Legal Writing for the Rewired Brain: Persuading Readers in a Paperless World" screen reading vs. paper. A generational thing.
- Question: If you can cite many cases to support your position, how as an advocate do you choose? Answer: Start with the newest case, or the one most relevant to this court, then perhaps follow up with the oldest (to show that its a "well-established" rule you are advocating). And, if there is a case from a court of last resort, don't bother with intermediate court opinions if you are arguing to a court of last resort.
- Question: Should an appellee's brief track the opening brief? Answer: it makes it easier on judges if your brief tracks the organization of opening brief, if at all possible. If the Answering Brief does not track Opening Brief, explain why in the Introduction.
- Audience member: thank you panelists, for letting me know why I lost so many appellate arguments!
- Reply briefs: they are essential; keep them short, focused, condensed. Panelist: I use the Introduction in the reply brief to summarize: "here's why we should win, despite their arguments."
- One final point (from Judge Smith): tone is important. Bad tone about the other lawyer, the lower ct judge, for example, will usually result in a bad tone from the appellate court.
