Transcript Writing Appellate Briefs:

Writing Appellate Briefs
Have a Point
• Easy to say; frequently difficult to do
• Each sentence should have a point that is
connected to the other sentences in the
paragraph (and the larger argument)
• Focus on facts and law that advance that point
• Edit out things that don’t contribute to your
point
Legal Writing Compared to Other
Genres
• Legal writing is not its own species
– Comprehensible and cogent
• Aim for intelligent layperson
– Brief
• Excessive length does not overawe readers; it annoys them
– Interesting
• To the extent possible, tell a story that makes the judge want
to rule for you
• To the extent possible, argue the law in a way that makes the
judge think ruling for you is consistent with binding
precedent
Fenimore Cooper’s Literary Offenses
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•
That a tale shall accomplish something and
arrive somewhere. But the “Deerslayer” tale
accomplishes nothing and arrives in air.
They require that the episodes in a tale shall
be necessary parts of the tale, and shall help to
develop it. But as the “Deerslayer” tale is not a
tale, and accomplishes nothing and arrives
nowhere, the episodes have no rightful place in
the work, since there was nothing for them to
develop.
Mark Twain, 1895
Say what he is proposing to say, not merely come
near it.
Use the right word, not its second cousin.
Eschew surplusage.
Not omit necessary details.
Avoid slovenliness of form.
Use good grammar.
Employ a simple and straightforward style.
Writing Well, Generally
• Give the reader as many signposts as possible:
– Each paragraph develops an idea, and that idea is
clearly related to your argument
• A topic sentence lets the reader know where they are
in the argument
– Transitional sentences to move from one
paragraph and topic to the next
• “In addition to;” “Not only this, but that;” “To be
sure___, but____ as well.”
More General Writing
– Archaic figures of speech only rarely help the
writing or the argument
• A little Latin goes a long way
– Varied sentence structure is better than endless
uniformity
– Use some varied vocabulary
– Don’t use all passive voice
• But don’t make a fetish of it
• Can help downplay a less-than-ideal fact
Editing Searches
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“there w”
make/made an
prior to
pursuant to
Such
Which
That was
• In order to
• Failed
• The fact that
We shall not cease from exploration
And the end of all our exploring
Will be to arrive where we started
And know the place for the first time
T.S. Eliot, “Little Gidding,” The Four Quartets
• Edit your own work as pitilessly as possible
• Have someone else edit it more ruthlessly still
– Omit what is unnecessary—judges read many
briefs
– Restructure where necessary to convey meaning
more clearly and concisely
• Move up conclusions that it took a fair bit of thinking
and writing to guide the reader
Tone
• Abusing your opponent
– Adjectives, adverbs,
– Outrage, name-calling, ad hominem attacks
– Hyperbole: easy to overdo caricatures of justice,
description of client’s virtues, law enforcement
officer’s moral turpitude, stupidity of court below,
base treachery of opposing counsel, borderline
frivolity of all opposing arguments, etc.
– Making fun of your opponent
– Take (and treat) opposing arguments seriously
Elements of an Appellate Brief
– Statement of the Issue
• Write as question or as statement
• Be accurate and brief (3 lines?)
• Frame the issue as persuasively as possible without being
disingenuous; accurately, but in your terms
• Should suggest the correct conclusion
• Contain enough legal and factual detail to get the court’s
attention
– Purpose of Statement of Issue
» consider writing it last
– Nothing cumbersome or incomprehensible
» “Whether the district court erred by enhancing the sentence
by 16 levels pursuant to Application Note 1(B)(iii) of U.S.S.G.
§ 2L1.2(b)(1)(A)(ii).”
Arguments du Jour
• Scotusblog
– Petition of the day
– Argument previews/summaries
– Read briefs
• Emails for 10th Circuit and state cases
• Websites for particular topics
– Volokh Conspiracy
– Sentencing Law and Policy
– How Appealing
Statement of the Case
• Old Rule:
– FRAP 28(a) The appellant’s brief must contain,
under appropriate headings and in the order
indicated:
…..
• (6) a statement of the case briefly indicating the
nature of the case, the course of proceedings, and the
disposition below
• (7) a statement of facts relevant to the issues
submitted for review with appropriate references to
the record
New Rule Combines Statements of
Case and Argument
• 28(a) The appellants brief must contain, under
appropriate headings and in the order indicated
…..
(6) A concise statement of the case setting out
the facts relevant to the issues submitted for
review, describing the relevant procedural history,
and identifying the rulings presented for review,
with appropriate references to the record.
Facts
• Tell an interesting story that suggests a conclusion
– Advocacy couched in apparently neutral terms
– A matter of emphasis of good and bad facts
• It must be accurate
• Include bad facts
– So long as they are non-trivial and material to your issue
• Cite every factual statement to the record on appeal
– Include citations as you write the first draft
– Cite-check them manually before you file
• Consider writing this first when it is fresh from reading
record
Exercise Discretion
Style may be likened to an army, the author to its general, the
book to the campaign. Some authors proportion an attacking
force to the strength or weakness, the importance or
unimportance, of the object to be attacked; but Cooper doesn’t.
It doesn’t make any difference to Cooper whether the object of
attack is a hundred thousand men or a cow; he hurls his entire
force against it. He comes thundering down with all his
battalions at his back, cavalry in the van, artillery on the flanks,
infantry massed in the middle, forty bands braying, a thousand
banners streaming in the wind; and whether the object be an
army or a cow you will see him come marching sublimely in, at
the end of the engagement…
Mark Twain, Fenimore Cooper’s Further Literary Offenses:
Cooper’s Prose Style,” 1895.
Argument
• Have a point and get to it as quickly as possible
• Guide the reader through the argument so that the
conclusion appears to flow naturally
– Use headings (and sometimes sub-headings)
• Support each statement of law with citation to authority
– Do this as you write—forgetting the place where a necessary
argument came from is inevitable
– Cite check before filing
• Not too many block quotes
– Incorporate crucial language into your sentences
• No string cites to obvious propositions
• Use the most recent controlling precedent available for a
point
Ordering the Issues
• No one-size-fits-all answer, but think about it
• General Rule is strongest issue first, but what
does strongest mean?
– Issue that affects whole case (e.g., insufficiency of
the evidence) vs. issue that could only get new
sentencing
– Issue with best chance of winning
– But could be less confusing to discuss in
chronological order, especially if in that order in
statement of case and statement of issues
Summary of the Argument
• There are rules that govern this—read them
• Write this (along with the statement of the
issue) when you have finished writing
everything else
• Don’t be coy
– Lay out all important points of argument clearly
and concisely
– Do not just repeat subheadings from Argument
Plain Error
• Make the argument in Opening Brief if issue
wasn’t properly preserved
– Argument may not be preserved for appeal if not
raised and briefed in Opening Brief
– Argue the alternative as well, that error was preserved
– Credibility with Court
• Look for plain-error precedent on your question
– A few types of error generally satisfy one or more
prongs of test
Reply Briefs
• Briefly contextualize the argument (1 or 2
sentences)
• Address the government’s better arguments
• Keep to your own structure
– Respond to government’s issues in whatever order
works for you
– Respond selectively
• Read government’s cases carefully
• Fairly frequently government makes dubious use of precedent—
distinguishable, irrelevant, holding overstated
• Exercise some restraint over tone
Lord Goring:
There’s somebody I want you to talk to.
Lord Caversham: What about?
Lord Goring:
About me, sir.
Lord Caversham: Not a subject on which much eloquence is possible
Oscar Wilde, An Ideal Husband
Sometimes clarity is not your friend
Read record:
•
Docket, transcripts, charging documents, any motions,
PSR
•
Suppression, Brady, grand jury, indictment, speedy trial
•
Jury selection, evidence, instructions, arguments,
sufficiency of the evidence, all elements of offense in
indictment and found by jury
•
Change of plea
•
Sentencing: Guidelines calculation, crimes of violence,
§ 3553(a), explanation of sentence, variances,
reasonableness
Miscellany
• Tastes differ
– Some judges make those tastes apparent
• Call chambers; look on website (JJ. Shelby and Nuffer)
• Check for briefing rules:
– Federal Rules of Appellate Procedure
– Local Rules
– Keep word lists
• Alternatives to “states” or “argues”
• Use thesaurus