Commentary: Go for the jugular when writing appellate briefs

Writing persuasive appellate briefs is an exercise in setting priorities. Deciding what's most vital to your case is a first step toward a brief that goes for the jugular, rather than the capillary.

What is the most important part of the appellate brief? The statement of the case, questions presented, statement of facts or the argument and conclusion? The answer depends on the particular case. Many claim the statement of facts deserves the honor. Indeed, Justice Robert H. Jackson was fond of claiming ex factus ius oritur. (From the facts arises the law.)

You might also ask, Which part of the brief should I draft first? It is a matter of personal preference. I feel it's helpful initially to formulate the questions presented, or at least a rough draft of them. With the questions presented in mind, you can better present the statement of the case and the statement of facts. Then tackle the argument. Before calling it a day, it's advisable to refine the questions presented and other sections.

Statement of the case

The statement of the case introduces the procedural history of the case. Only those facts important to a fundamental understanding of how the case developed procedurally should be included in briefs filed in the state courts. By contrast, in briefs filed in the 4th U.S. Circuit Court of Appeals, the statement of the case also includes your statement of the facts.

Questions presented

You have two challenges when you draft your questions presented. First is the task of winnowing down the number of issues you present. No rule requires you to limit yourself to no more than three issues. Nevertheless, if you cannot persuade the court to accept your strongest arguments, what hope is there for issues four or five? Therefore, eliminate issues that lack the likelihood of success. Use your judgment and experience to guide you, as well as existing case law, statutes, and rules.

The second challenge in drafting the questions presented is the actual framing of the issues. Effectively stating the question is critical. You must develop a question that contains just enough facts to begin shaping the thoughts of the reader to accept your point of view. When the reader examines the questions you present, she or he should want to answer in your favor.

The more precise your questions are the better. Avoid general questions like: Did the trial court err in granting summary judgment? Rather, be more specific: Whether the trial court erred in granting summary judgment when the following material facts were in dispute:-

A helpful technique in developing your questions is to list the important facts pertinent to the issue and add the word whether before those facts. Remember, if you begin your question presented with the whether, do not add a question mark at the end.

Statement of facts

I am one who thinks the statement of facts is the most important part of the brief. By the time the reader completes the statement of facts, you hope that you have won him or her over. In stating the facts, do not simply restate pertinent testimony in chronological order. Rather, tell a story. Develop a theme and weave the testimony and exhibits around that theme. Humanize your client and try to develop the facts in a way that will support your subsequent argument. Quote testimony only when helpful.

Do not fail to state facts that work against you, but place those harmful facts in a context that is advantageous to your client. For example: Although Smith was traveling at an excessive rate of speed, he was moving with the flow of traffic and was in complete control of the car. Misstating the facts or omitting significant facts, especially if harmful, can damage your credibility with the court and opposing counsel.

While arguing the facts or law is not permitted in the statement of facts, the manner in which you present these facts should have the force of argument. Bear in mind that short sentences using active voice are more effective than complex sentences and passive voice. When appropriate consider using subtitles or subheadings.

The argument

The argument is the heart of the brief. State the most important points first, saving less important points for development as your writing proceeds. You might compare the structure of the argument to a news article appearing in the local paper that uses the so-called inverted pyramid style.

Prior to each section, argumentative headings should tell the reader what to expect. These headings should not be merely topical, but persuasive and precise, as well. For example, rather than writing, Summary judgment was improperly granted, try, Summary judgment was improperly granted because the intent of the parties was in dispute, and Smith's intent raised a dispute about a very material fact.

One of the best works on appellate practice is Frederick B. Weiner's Briefing and Arguing Federal Appeals. Although the work is out of print, the ABA Litigation Section is undertaking a new edition. Weiner suggests a formula of assertion, presentation, and conclusion for each of the main points in your argument. Here's an example:

Assertion: The court erred by granting summary judgment because Smith's intent is in dispute.

Presentation: Although Jones testified in deposition that Smith did not intend to place the order for the chemicals, Smith's affidavit states the contrary. It is axiomatic that summary judgment should not be granted if material facts are in dispute. When intent is an issue, it is rare that summary judgment is granted because intent, by its very nature, is subjective.

Conclusion: If this court were to affirm, the rule governing summary judgment would have no meaning.

A question is often asked: If I find a case that supports the adversary, do I cite it in my brief? You should. You are an officer of the court. The other side will cite it, and you may want to demonstrate the strength of your argument by pointing out the case in opposition as long as you distinguish it from your client's case. Certainly, your credibility is preserved when you point out to the court cases that do not support your view.

Use analogies in your argument. After all, the entire development of the common law is based on analogical reasoning. Also, demonstrate the case's larger implications. For example: If this court holds that the office had probable cause, then any individual last seen with a victim prior to death could be arrested at will.

All of this is easier said than done, of course. Setting priorities in complex litigation is always a challenge, one that must be met with some tenacity. Hopefully, your careful analysis, thinking, and hard work will pay off in a brief that doesn't waste a word in persuading the reader, start to finish.

Trial lawyer and author Paul Mark Sandler is a partner with Shapiro Sher Guinot & Sandler in Baltimore. His column appears Fridays in The Daily Record.

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