How to Write an Appellate Brief
Appellate litigation is a unique area of legal practice. It is never simply a rearguing of the facts, and, as a matter of fact, only the facts as they were established in the lower court trial are available to the appellate litigator. Appeals have two major parts, the appellate brief and the oral arguments. Most judges agree the oral arguments only factor about 10to 30 percent in making their decisions. In fact, judges will often make their decisions based on the brief alone, reserving the oral arguments for fine tuning the details of their opinion.
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Things You'll Need
- Admission to bar and relevant appellate court
- Appellate Rules of Procedure
- Lower court record
- Word processor
Instructions
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Review the rules of procedure for the relevant jurisdiction. These rules can determine everything from font size and cover format to time deadlines and content restrictions and can change from year to year. Knowing the rules ensures the judges receive the sort of form and content they’re expecting, increasing the odds the brief will be effective, and protecting the writer from malpractice.
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Be familiar with the case at issue. Aside from other relevant precedents, nothing outside the record of the lower court proceedings is admissible at the appellate level. The writer of an appellate brief should therefore have access to the entire record, including all pleadings, discovery, motions, judgments and transcripts. If not the attorney in the lower court, the writer should also interview them.
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Be aware that generally, the better the organization and mastery of the record, the better and more efficient the writing process will be. One excellent way to compress this huge volume of information into a more usable format is to review the record meticulously and summarize relevant points in a separate document that can later become the basis for the appellate brief.
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Know that, like all important written documents, an appellate brief should be the product of extensive drafting and revision. Only after significant study and mastery of the lower court record should writing the brief even be attempted. Ultimately no more than three or four, though possibly as few as one or two, issues should be brought before the appellate court. These should be reviewed and dissected thoroughly in the brief with the strongest issue first.
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Conduct a last review of the rules of procedure to ensure the filed brief is in compliance. Attention should be focused on the number of copies that need to be produced and who needs to recieve a copy, which will vary from court to court. Typically copies need to be produced for the judges, the clerk and opposing counsel.
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Tips & Warnings
While creating a summary of the record, take the time to analyze the issues that rose in the lower court and how they were decided. It’s crucial to know the legal principles behind these decisions and how they relate to the case. Discussing these issues with others will help create mastery, and will aid in narrowing the issues to those most useful in the appellate brief.
If at all possible, avoid using prepared forms for writing the brief as these may be outdated or not particularly effective. If a form must be used, one obtained for the clerk of the appellate court is most likely to be reliable.
Completing a first draft several weeks in advance of the filing deadline will provide enough time to adequately refine the brief and afford the writer time to take a break from the writing process and come back with a fresh perspective.
No amount of attention to the rules of procedure can be too much. Briefs can be rejected on the basis of format alone, which could seriously prejudice a client and subject an attorney to malpractice.
An appellate brief is not merely a rehashing of arguments made in the lower court. A brief that relies solely on this approach has a very low likelihood of achieving the desired result.
