Appellate Briefs-One Judge’s View of the Good, the Bad, and the Ugly

I am honored to join the “The Appellate Advocacy Blog” as a regular contributor, and I look forward to sharing my views from both sides of the bench.

The most frequent question I am asked by law students and practitioners is “Since you read so many briefs, what makes an appellate brief stand out?”

Over the next few months, I will share my own observations along with those of my judicial mentors. I will provide positive tips along with “pet-peeves,” assembled over my years of readings briefs every day and from the staff of judicial attorneys who take the first look at the case, combing through and verifying the record and research. This leads to my first tip, the importance of recognizing that the brief has two readers-the judge and the writing judge’s judicial attorney, so your first task as a brief writer is to make it easier for them to find everything, especially in an extensive record.

The humorist, Will Rogers, said, “You never get a second chance to make a great first impression.” A well-designed, well-written appellate brief may not win the case if the facts and the law are not on your side, but there is no doubt that good brief writing has an impact on judicial decision making. Briefing that complies with procedural rules (do not ignore local rules), that presents cogent arguments supported by thorough legal research, that is well-organized and logical in its presentation, and that is not full of ad hominem attacks or “snark” make that first great impression. A well-written brief permits “the court to efficiently resolve the questions presented without unnecessary detours to decipher unclear arguments or correct misstatements of the law.”^[i]

Let us begin with the “pet peeves.”

1. Misstating the record, the facts, or the law. This immediately dooms your entire brief because it creates mistrust in the reader, undercutting any argument. I had one colleague who told me he would stop reading a brief if he found multiple misstatements because while one or two errors can be attributed to sloppy work; more than a couple of errors is evidence of intentional deception. Moreover, with the advent of AI generated briefs and the judge’s ability to run a brief through programs on Westlaw and Lexis that will verify citations, check for “cherry-picked” incomplete quotes, and the failure to identify other precedent, it is easier to spot the “Chat GPT brief,” which may subject the author to sanctions. 
2. Ignoring the standard of review. You may have a brilliant argument, but if you are relying on the wrong standard of review you lose.
3. Making ad hominem attacks. For example, this is a needless statement from a brief, which does nothing to advance the writer’s argument: “From this heap of possibly tangential though unrelated drivel, it is clear that Appellee’s only hope in this case is misdirection.” If that is all you can say to undercut your opponent’s argument, you have lost the reader, along with any semblance of professionalism.
4. Trying too hard to impress the court with how smart you think you are. Here is an example from another brief. “The State should concede in moto proprio that the trial court’s August 6, 2008 order is interlocutory in primus and proceed de integro, rather than remain disputatiously embattled in a debacle ad extremum.  The state, instead, should emulate the AUSA in the following examples.” The only time I want to read Latin phrases is at mass.
5. Failure to cite to the record or inadequate citations to the record.  Failing to cite or direct the court’s attention to the proper transcript of the docket (T.d.) number or transcript of the proceedings (T.p.) page can be an inconvenience that slows down the process of addressing the arguments at issue, particularly with a multi-day trial transcript.
6. Redundancy.  For instance, in a criminal matter where sufficiency and/or manifest weight is raised, avoid stating all facts on the front end and then re-stating all the facts in the argument portion.  If the argument is very fact dependent, give a brief statement of the facts up front, but save the details for the analytical aspects of the brief.
7. Fragmented case citations.  Not often, but sometimes, attorneys will cite a case without a website, giving us only the caption and the appellate case number.  Incomplete citations slow things down and are easily avoided with a full and accessible citation.
8. Wrong case citations. The inclusion of an incorrect citation gives the impression that the writer is not concerned with accuracy, making the reader wonder what else is incorrect.
9. Not citing the seminal case on point.
10. Not citing case law from the controlling appellate district.
11. Ignoring contrary authority that is directly on point or citing it in a footnote. Any argument made in a footnote is worthless. If an argument needs to be made, make it in the body of the brief.
12. Lack of clarity in arguments. I will discuss identifying and arguing the “deep issue” in future tips articles.
13.  Block quotations. Studies have demonstrated that a reader subconsciously skips over a long block quote. I encourage you to read “Legal Writing for the Rewired Brain” by Robert Dubose.[ii] In future posts I will discuss how brief writing needs to evolve since more judges are reading on screens rather than paper.
14.  Putting citations in footnotes. As just noted, most judges and judicial attorneys read briefs on screens now. That screen may be an iPad size screen. It is frustrating to have to scroll up and down to find a citation and then continue reading. Most judges evaluate a statement based on the authority cited for that statement. The statement loses its effect when the reader must hunt for the citation.
15.  Lack of pinpoint citations. This is particularly problematic when the cited opinion is lengthy and addresses multiple issues.

I promise to provide positive tips in my next post. Until then, I leave you with this:

“Readers of legal writing, on and off the bench, often work under the pressure of a relentless clock…They may lack the time to ferret out bright ideas buried in complex sentences, overlong paragraphs, or too many pages…Strong arguments can escape attention when embedded in dense or Delphic prose. Lucid, well-ordered writing can contribute immeasurably to a lawyer’s success as an advocate and counselor.” [iii]

[i] Carson v. Int’l Headquarters Pension and Beneficiaries Plan, No. 5:14-CV-11617, 2014 WL 4467701 at *4 n.6 (S.D.W.V. Sept. 9, 2014).

[ii] Legal-Writing-for-the-Rewired-Brain.pdf

[iii] Ruth Bader Ginsburg, Foreword to Bryan A. Garner, Garner on Language and Writing xiii (2009).