Brief Tips

The Shorter and Easier to Read, the Better

• In our court counsel get extra points for briefs they bring in under the 50-page limit.   Many judges look first to see how long a document is before reading a word.  If it is long, they automatically read fast; if short, they read slower.   Figure out yourself which is better for your case.

The Honorable Patricia M. Wald (United States Court of Appeals for the District of Columbia)¹

• Don’t try to be Garcia-Marquez or Shakespeare. . . The effective brief writer should always strive for simplicity in wording and structure. . . Unnecessary fancy language and complex concepts should be left to the novelist or professor.

The Honorable David M. Gersten (Florida Third District Court of Appeal)²

• Preferably, use each party’s name or title [instead of “appellant” or “plaintiff”], and use that same identification throughout your brief.

  The Honorable Leonard I. Garth (United States Court of Appeals for the Third Circuit)³

Always Consider Jurisdiction

• Make certain that the court where your appeal is filed has jurisdiction – and that you acquaint the court with that fact, up front in your brief and with an explanation.   If you want to make the judge who is reading your brief a very unhappy jurist, just fail to provide jurisdictional information the judge needs to act on and decide your appeal.   Time and again, I have seen no more than the term “final order” appear in the jurisdictional statement of a brief – when indeed a jurisdictional issue of some moment was involved.

  The Honorable Leonard I. Garth (United States Court of Appeals for the Third Circuit)⁴

Selecting and Framing the Issues: The Importance of the Standard of Review

• There are two components involved [in writing a good brief]: selecting what to argue and then effectively arguing that which you have selected.

  The Honorable William C. Whitbeck (Michigan Court of Appeals)⁵

• The court requires a statement of questions involved, delineating these questions “concisely and without repetition.   ” For some reason, many appellate attorneys interpret this language to require that the appellant state each question in one painfully long, virtually unreadable sentence, all in capital letters, that starts with “whether” and ends with a question mark.   There is no such requirement, and such a format simply consigns substance to oblivion.   Rather . . you should break the question down into separate sentences.   You should weave in enough facts so that the reader can truly understand the problem.   And you should write the question is such a way that there is only one possible answer.

  The Honorable William C. Whitbeck (Michigan Court of Appeals)6

• I suggest that no brief should ever exceed five points: preferably, no more than three.

  The Honorable Ruggero J. Aldisert (United States Court of Appeals for the Third
  Circuit)7

• Standard of review is the element of appellate advocacy that distinguishes the good appellate advocate. . . . For an effective appeal, both the brief and the oral argument should be structured around the appropriate standard of review.

The Honorable Leonard I. Garth (United States Court of Appeals for the Third Circuit)⁸

• If your court is divided philosophically, and on our court most panels are, your best bet is to strive for a narrow fact-bound ruling that will not force one or two judges to revisit old battles or reopen old wounds.

The Honorable Patricia M. Wald (United States Court of Appeals for the District of Columbia)⁹

The Summary of Argument

• A summary of the argument should be able to tell an appellate court precisely and concisely what error the trial court made below that requires us to take the extraordinary step and consume and utilize the judicial resources necessary to retry that case.   I think litigants who don’t put in a summary of the argument have done themselves a grave disservice, and those who don’t use the summary properly are close behind.

The Honorable Carlos F. Lucero ( United States Court of Appeals for the Tenth Circuit)¹⁰

• I invariably consult the summary of argument, both after I have prepared myself for oral argument and just before I hear the argument itself. . . A summary, of course, should be just that, a summary, i.e., no more than 1 to 1 and ½ pages, and not a full exposition.

The Honorable Leonard I. Garth (United States Court of Appeals for the Third Circuit)¹¹

Lead with Strength

• I believe that the brief’s strongest point should be set forth first. This is not the point about which you, the author, feel most strongly.   It is the one with which the appellate court is most likely to agree.

The Honorable Ruggero J. Aldisert (United States Court of Appeals for the Third Circuit)¹²

Cite with Care

• The single, easiest way to make a good brief better is by the judicious use of parentheticals following case citations.

The Honorable Leonard I. Garth (United States Court of Appeals for the Third Circuit)¹³

• Do not dilute your credibility by calling diluted cases “on point.” On that same note, it is disheartening to read a brief that does not address a milestone case on an important issue.

The Honorable David M. Gersten (Florida Third District Court of Appeals)¹⁴

• Do not mischaracterize the cases you cite by referring to statements in the cited cases as “holdings.”

The Honorable Leonard I. Garth (United States Court of Appeals for the Third Circuit)¹⁵

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1 The Honorable Patricia M. Wald, ESSAY: 19 Tips from 19 Years on the Appellate Bench, 1 J. A PP. PRAC. & PROCESS 7, 10 (1999).
2 The Honorable David M. Gersten, Appellate Practice - - A Special Issue: Effective Brief Writing and Oral Argument: Gaining the Inside Track, FLA. B.J., Apr. 2007, at 26, 26.
3 The Honorable Leonard I.Garth, How to Appeal to an Appellate Judge, LITIGATION, Fall 1994, at 20, 67.
4 Id. at 22.
5 The Honorable William C. Whitbeck, View From the Bench: Michigan Court of Appeals, Part 1: Writing to Win at the Court of Appeals, MICH. B.J., July 2006, at 20, 22.
6 Id. at 22-23.
7 The Honorable Ruggero J. Aldisert, The Appellate Bar: Professional Responsibility and Professional Competence- A View from the Jaundiced Eye of One Appellate Judge, 11 CAP. U. L. REV. 445, 458 (1981).
8 Garth, supra note 3, at 22-23.
9 Wald, supra note 1 , at 19.
10 The Honorable Robert R. Baldock, Honorable Carlos F. Lucero, & Vicki Mandell-King, What Appellate Advocates seek from Appellate Judges and what Appellate Judges Seek from Appellate Advocates, Panel Two, 31 N.M.L. REV. 265, 266 (2001).
11 Garth, supra note 3, at 24.
12 Aldisert, supra note 7, at 457.
13 Garth, supra note 3, at 24.
14 Gersten, supra note 2, at 28.
15 Garth, supra note 3, at 24.