SMU Law School Professor Bill Dorsaneo spoke at today’s Dallas Bar Association Appellate Section meeting. He offered a number of tips on writing an appellate brief. Here are my five favorites:
1. To make the statement of facts section of your brief compelling, include only those facts relevant to the legal issues you will be arguing. Doing otherwise will (1) dilute the facts that are helpful to your legal argument and (2) suggest to the justices that you don’t mind wasting their time.
2. The table of contents section of your brief should, by itself, tell a compelling story about the appeal and why you should win. The same is true for the issues presented section of your brief.
3. If something in your brief is extremely important, repeat it in at least one other place in the brief. Otherwise, you risk the possibility that a justice will accidentally miss seeing it.
4. Your brief should only include your strongest arguments. Weaker arguments dilute stronger arguments.
5. In deciding what issues to raise in your brief, you should consider four factors. First, was the error preserved? If not, there is no point in raising the error as an issue. Second, what is the applicable standard of review? Appeals are often won with a de novo standard of review, but rarely won with an abuse of discretion standard of review. Third, was the error harmless? If the error was harmless, there is no point in raising the error as an issue. Fourth, would the issue be inconsistent with prior case law from the court hearing your appeal or a higher court? If so, stare decisis will almost certainly trump any argument you might make.