Law school teaches lawyers to read court opinions – hundreds of them. Reading hundreds of court opinions shows us what a judge likes to write. We need to learn to write what a judge likes to read. That is a different task.
It is more than going to the library to locate relevant cases. It is more than reading and summarizing a trial transcript. It is more than following the local rules to include the required sections of a brief.
Every part of the Brief has a purpose. The Questions presented get the reader oriented to the issues. The Summary of the Argument gets the reader interested in the issues. The Fact section gets the reader motivated to decide the issues in your favor. The Argument gives the reader a guide to the rationale for a decision.
Writing Your First Appellate Brief touches on every part of the Brief, and on every process that a writer needs to consider. Whether you are a law student writing for a class, appointed counsel writing a brief because you were assigned to write one, or a lawyer who wants a fresh look at the process, this book will help you do a better job on your first Brief, and every Brief you write.
Chapter 1—Before You Start
1.1 Evaluate Yourself Before You Evaluate the Case.
1.2 This Book is for People Who are Writing their First Brief.
1.3 You do have Many of the Right Skills.
1.4 You have not Worked on Some Important Skills.
1.5 What Skills do You Need?
1.6 How to Get there—PIXAR Rules?
1.7 What is a Good Way to Begin?
Chapter 2—Writing for an Audience
2.1 What is Going on in an Appeal?
2.2 Is there a Right Result in Every Appeal?
2.3 What is the Lawyer’s View of what is Going on?
2.4 What is the Judge’s View of what is Going on?
2.5 What Must we do to Persuade?
2.6 Simplicity is Always Persuasive.
2.7 How can I Begin to Reach my Audience?
Chapter 3—Contents of the Brief
3.1 What is a Brief, and what does it Look Like?
3.2 Contents of the Brief.
a) Disclosure of Parties and Counsel
b) Statement Regarding Oral Argument
c) Table of Contents
d) Table of Authorities
e) Questions Presented
f) Statement of the Case
g) Statement of Facts
h) Procedural History
i) Summary of Argument
k) Prayer for Relief
l) Certificate of Service
m) Certificate of Compliance
Chapter 4—The Importance of Form
4.1 The Form Requirements for a Brief.
4.2 Are Form Requirements Important?
4.3 Formatting the Content is Important, too.
4.4 What About Citation Form?
4.5 Form Leaves an Impression on the Reader.
Chapter 5—The Story of the Case
5.1 Why is the Story Part of Persuading the Reader?
5.2 Compare the Usual Legal Writing.
5.3 How does the Story Work for You?
5.4 The Story has a Lot to do with the Ultimate Result.
Chapter 6—The Theme of the Case
6.1 Thinking About the Theme of Your Case.
6.2 Brainstorming a Theme.
6.3 What is the Theme in a Case?
6.4 What is a Good Theme?
6.5 Make the Theme Interesting.
6.6 The Theme Relates to the Product, Service, or Industry Involved.
6.7 The Theme is Your Slogan.
6.8 The Theme must Fit the Facts.
a) Be Accurate with Your Facts
b) Don’t Overargue the Facts
Chapter 7—Question Presented
7.1 Questions Presented/Issues Presented?
7.2 Arranging the Issues.
a) Tying to the Theme
b) Start with the Obvious:
c) State the Issue Narrowly:
7.3 The Issue as a Question.
7.4 An Affirmative Statement of the Issue in the Case is More Likely to Bend Your Reader.
7.5 An Argumentative Statement can be Persuasive.
7.6 A Classic Question uses “Under...Does...When”
7.7 Last Thought.
Chapter 8—The Summary of the Argument
8.1 Is the Summary All that important?
8.2 The Purposes of the Summary of the Argument.
8.3 The Opening Lines.
a) Fisher v. University of Texas at Austin
b) Schuette v. Coalition to Defend Affirmative Action
c) Hollingsworth v. Perry
d) Kelo v. City of New London, Connecticut
e) Kyllo v. United States
f) McCreary County, Ky. v. American Civil Liberties Union of Kentucky and Van Orden v. Perry
g) McCutcheon v. FEC
h) United States v. Stevens
i) Town of Greece, N.Y. v. Galloway
8.4 The Ending is Just as Important.
8.5 What is in Between?
Chapter 9—Writing a Story
9.1 Where to Start Your Story?
9.2 Give Your Story a Title.
9.3 What is the Source of Your Story?
9.4 Which Details Matter?
9.5 Perspective Makes a Difference in Storytelling.
9.6 Charts, Graphs, and Pictures Help.
9.7 Detailed Description of the Characters in the Story is not Typically Needed.
9.8 Every Story Needs a Climax.
9.9 You will have to Write a Procedural History of the Case.
Chapter 10—The Standard of Review
10.1 At Trial, You Want the Judge to Exercise Judgment.
10.2 At the Lower Court of Appeals, you Want the Court to Justify the Judgment.
10.3 Cases at the Supreme Court.
10.4 Standard of Review.
10.5 Impact of a Standard of Review.
10.6 Actual Standards.
10.7 Motion for Summary Judgment.
10.8 Writing Arguments About the Standard of Review.
Chapter 11—Structure of the Argument
11.1 There are Five Approaches to Structure Your Argument.
a) Focusing on the Law
b) Focusing on the Facts
c) Focusing on the Solution
d) Focusing on Context
e) Focusing on the Error
11.2 There is a Way to Organize Your Paragraphs.
11.3 Fashioning Argument.
11.4 Finding Applicable Case Law is not Enough to Make an Argument.
a) Give the Court the Tools of Decision.
b) Providing too Much Information
Chapter 12—Sentence Outlines
12.1 A Real Sentence Outline will Write the Brief for You.
12.2 How to Get to a Sentence Outline.
12.3 Organizing the Ideas into an Outline.
Chapter 13—Writing Your Argument
13.1 Be Explicit. Details of the Argument Come Next.
13.2 Consider Your own Experience Reading a Screen.
13.3 Reveal Your Plan Before You Start.
13.4 Time is a Detail the Reader Rarely Needs.
13.5 Discussion of Cases is Tricky.
13.6 Short Sentences Work.
13.7 Words and Sentence Structure Matter.
13.8 Social Words do not have the Intended Effect.
Chapter 14—Argument Headings
14.1 Headings are Helpful.
14.2 The Headings have a Purpose.
Chapter 15—Conclusion and Prayer for Relief
15.1 Make a Definite Request for Relief.
15.2 Or, Say Something Different…Something You haven’t Said Before.
15.3 Control the Court’s Impression of Your Case.
Chapter 16—Editing and Polishing Your Work
16.1 Five Steps for Editing Your Brief.
a) Spelling and Grammar—at Least, use Spell Check and Grammarly.
b) Citations and Formatting—at Some Point, You have to Check Your Citations.
c) Consistency—Before You Finish, Read Your Argument for Consistency.
d) Simplicity—You Need to Read it Once for Simplicity.
e) Creativity—and, at Least One Editing Pass Should be Devoted to Creativity.
16.2 Polishing Your Writing.
a) Writing is Important
b) The Right Word is Important
c) The Right Sentence is Important
d) The Right Style is Important
16.3 Overcoming Resistance is Important.
a) Never Tell People they’re Wrong
b) See the World from Your Reader’s Perspective
c) Tell Stories First
d) Use Emotional Appeals
e) Prove it with Facts
f) Justify with Logic
g) Paint a Brighter Future with Your Reader in it
16.4 Is it Really Possible to Write Memorably?
Chapter 17—Improving Your Brief with Persuasion Techniques
17.1 Make Audience Think they are Doing what Everyone is Doing.
17.2 Don’t Give too Many Choices.
17.3 Position Yourself as the Compromise Argument.
17.4 If You Want People to Act Consistently, Tell Them that the First Time they Made this Decision, it was Right Then . . .Therefore it is Even More Correct to Continue on this Course.
17.5 It is More Effective to Use Examples where Errors have Occurred and the Consequences Than it is to Only Concentrate on Good Results.
17.6 Go Ahead and Emphasize Your Weakness.
17.7 Every Audience is Sensitive to Things it Cannot have, But Even More Sensitive to Things they will Lose
17.9 Contrasting Arguments.
17.10 People More Likely to Accept Your Argument if You Make Them Feel it is Unfinished Work. 100
17.11 Say the Word “Because.”
Chapter 18—Linking Your Brief to Oral Argument
18.1 The First Plan is to Choose the Issues to Argue.
18.2 The Facts are Actually Quite Important.
18.3 Make the Opening of Your Argument Count.
Federal Rules of Appellate Procedure