At two continuing legal education seminars I recently attended, court of appeals justices have expressed their preferences about appellate briefs. In no particular order, here are their preferences:
1. Resist client pressure to file long appellate briefs. Clients often like long briefs, but justices seldom do.
2. Include hyperlinks (to cases cited in the brief, to the appellate record, etc.) in electronically-filed briefs.
3. Don’t use the word “whether” in your issues presented (e.g., Whether the trial court erred. . .). You should advocate in your issues presented, and use of the word “whether” is not advocacy. Much better would be a declarative sentence like “The trial court erred in. . .” or, alternatively, a question like “Did the trial court err in ignoring the precedent that. . .?”
4. An appellant’s brief should anticipate arguments which will likely be made in the appellee’s brief. The appellant should not wait until his/her reply brief to address the appellee’s arguments. Instead, the appellant’s reply brief should be used only for unanticipated arguments.
5. Always be respectful when referring to actions of trial court judges. It’s fine to say that a trial court judge “made a mistake.” But harsher language is unwelcome. Remember that many appellate justices used to be trial court judges and sympathize with how hard it is for trial court judges to make decisions quickly during trial, often without the assistance of a law clerk.
6. Some appellate justices read appellate briefs on paper, some on desktop monitors, and some on iPads. Keep this in mind when formatting briefs.
7. There is usually only one copy of the clerk’s record, but there are three appellate justices (and often three staff attorneys) working on an appeal. So, if there is a document from the clerk’s record that you particularly want to be studied, you should include that document in your brief’s appendix. That way, all of the justices and staff attorneys will be able to access the document at any time.
8. If you must have several authors collaborate on writing an appellate brief, be sure to give one person the authority and responsibility for performing final edits to the brief, making it read like it was written by one person rather than by a committee.
9. Include the standard of review at the beginning of the argument section of your appellate brief, and then continue to weave the standard of review throughout your argument section. Even if the standard is unfavorable to you, embrace the standard and show how you can satisfy it.
10. In an appellant’s brief, don’t forget to let the court of appeals know what relief you are seeking. Certainly do this in your prayer, but considering doing this at the beginning of your argument section, too.
11. When writing an appellee’s brief, you should track the order of the arguments in the appellant’s brief. If you must deviate from this order, explain that you are doing so and why it is necessary.
12. Before filing any appellate brief, review the rule about what must be included in the brief. You don’t want to get off on the wrong foot with the court of appeals by failing to respect its rules.