What Judges Want in a Winning Brief
As any appellate attorney knows, preparing a winning brief takes time, research and attention to detail. Appellate judges consistently advise that, while oral argument is important, the majority of appeals are won and lost on the briefs. Therefore, it is important to understand what separates winning and losing briefs. Reviewing the writings of numerous judges, seasoned appellate attorneys and legal scholars makes clear that the success of an appeal hinges upon understanding the perspective of the brief-readers. That begs the question: “for whom are you writing?” The obvious answer is judges, and understanding what, exactly, judges look for in a winning brief can be key to the success of your appeal.
New York First Department Justice Angela Mazzarelli and former Justice Israel Rubin believe that a successful brief must demonstrate the “ABC’s”, i.e., accuracy, brevity and clarity:
A – Accuracy: First, it is critical that a brief be accurate. Writers should direct the reader to supporting record citations, correctly represent the holding of supporting case law and avoid embellishing or exaggerating facts. It is also vital to address facts or law which may be detrimental to your case, and take the time to distinguish bad facts and law accordingly. Nearly all the appellate judges we encounter have stated that first discovering bad facts or law in a Respondent’s brief tarnishes Appellant’s counsel’s credibility, and places the Appellant at a distinct disadvantage.
B – Brevity: Second, a winning brief should be just that – brief. Writers should keep sentences and paragraphs short and understandable, and avoid lengthy recitations. Third Circuit Senior Judge Jane R. Roth estimates that appellate judges are tasked with reading approximately 3,500 pages per month. Judge Roth also notes that most judges immediately question the quality of a lengthy brief. Brief-writers should consider this when contemplating whether to add superfluous case law, weak arguments or irrelevant facts.
C – Clarity: Third, a successful brief should be clear and tell a compelling story. Keeping your audience interested is of the utmost importance. Recently retired Seventh Circuit Judge Richard Posner advises that, when writing an appellate brief, it is important to understand that the judges reading the brief will not necessarily be experts in that particular area of the law. The judge will not spend nearly as much time reading the brief as you spend preparing it. He states, “[Judges] are interested not merely in the rule on which [the writer relies] but on the rule’s purpose and not merely on the facts that are developed in an evidentiary hearing, but also in non-adjudicative facts that illuminate the background and context of the case that make the case come alive.”
Finally, while this posting is focused on the written aspect of appellate practice, Justice Rubin’s Four “C’s” rule for oral argument provides guidance for brief-writers as well. Justice Rubin states that Appellant’s counsel should be clear, concise, convincing and courteous in oral argument. The first two “C’s” are addressed above (see “B” and “C”). Justice Rubin states that your goal as Appellate Counsel is to convince the panel that your client’s cause is just, and this can be accomplished through demonstrating enthusiasm. Lastly, Justice Rubin reminds counsel to be courteous at oral argument. Courtesy should also be conveyed in your brief. Justice Roth notes that snarky comments and personal attacks distract the reader from the merits of the argument.
It is important to keep the foregoing in mind when drafting your next appellate brief. Successful brief writing is challenging and time consuming. AppealTech specializes in handling the procedural and formatting matters associated with your appeal, allowing you to focus on research and effective brief-writing.
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