The Legal Purpose of an Appellate Brief

I. What Is an Appellate Brief?

A former colleague once commented that an appellate brief is a document written by a disgruntled practitioner who should have been better prepared at trial. Put more politely, an appellate brief is a litigant's way to challenge the final decision of a lower court.

A party or litigant who is aggrieved by a trial court's judgment or order can usually appeal to a higher court, where a panel of judges will decide whether the trial court was correct. An appellate brief is the written document submitted to the reviewing court to inform it of the material facts, legal issues involved, and why the law as applied to the facts should bring about the result the party seeks.

A brief is distinguishable from an inter-office memorandum, which objectively analyzes the law and facts. The purpose of an appellate brief is to persuade the reviewing court to rule in your favor. Your audience is a panel of judges who must resolve a controversy. As an advocate for your client, your duty is to interpret and argue your client's position in the most favorable light. While being scrupulous and honest, you must nevertheless advance your client's cause.

Generally the appellant-the person bringing the appeal-is asking the appellate court to alter a lower court's ruling based on one or more of the following arguments:
 

1. The lower court's ruling relied on erroneous facts;

2. The lower court's ruling relied on erroneous conclusions of law; or

3. The lower court's ruling misapplied the law to the facts.

Since appellate courts are usually limited to a record of the lower court proceedings, the first argument is the most difficult and least often used.

Working at best from a cold transcript of witness testimony, appellate courts are reluctant to make judgments concerning a witness's credibility or to elicit further testimony. Moreover, the trial court's view of the evidence comes to the appellate court clothed in a presumption of correctness. Still, the first argument may be used in instances where the lower court assumes a fact not in evidence, (meaning there is no record evidence to support a trial judge's findings), or where the lower court plainly overlooked or ignored a pertinent fact or facts.

In most cases an appellant seeks relief based on the second or third arguments, or a combination of these.        Let us assume (for example) that the testimony at a motion hearing or trial conclusively established that your client was a front-seat passenger in an automobile in which the police found contraband. Assume further that one cannot be guilty of illegal possession of contraband without proof of (1) knowledge of the presence of the contraband; (2) knowledge of the illegal nature of the contraband; and (3) the ability to exercise present dominion, custody or control of the contraband. Finally, assume that the judge ruled on the record that your client's presence in the automobile, coupled with the fact that the contraband was in plain view, was a sufficient basis to find your client guilty of possession of contraband.

On appeal, you may not be able to challenge the factual findings that your client was present or that the contraband was in plain view or that police found the contraband in the automobile. However, you could argue that (1) no evidence established that your client knew the substance in the ashtray was illegal; (2) no evidence established that your client had the ability to exercise control of the contraband; and (3) the elements of the offense (possession) were not proven by the established facts. Mere presence, you would argue, is not sufficient to establish either knowledge of the illicit nature of the contra band or your client's ability to exercise dominion or control over a substance found in someone else's automobile.

Regardless of the theory you choose for requesting appellate relief, once the choice is made you must focus on the specific relief you want. An appellate court usually will only (1) affirm the lower court's ruling; (2) modify the lower court's ruling; or (3) reverse the lower court's ruling. If the appellate court reverses the lower court ruling it will usually remand the case to the lower court for further proceedings, or in some criminal cases simply discharge the defendant/appellant. The appellant usually asks the appellate court to reverse the lower court ruling. The appellee usually seeks to have the lower court ruling upheld. Occasionally, however, both appellant and appellee feel aggrieved by a lower court decision and each side asks the appellate court to modify that decision.

In most appellate proceedings there are three types of briefs: (1) an initial brief, (2) an answer brief, and (3) a reply brief. In a situation involving a cross-appeal, a cross reply brief may be filed.

All briefs must conform to technical requirements of the forum in which you are seeking redress. Make it a habit to review the applicable rules of appellate procedure before submitting any brief. Rules vary from court to court. The rules are occasionally amended, and must be checked.    Failure to follow the rules will adversely affect your credibility. (Moreover, modem appellate rules are surprisingly short and simple.)

III. Choosing the Issues, i.e., The Question(s) Presented

As an appellant's counsel, the first step in preparing the brief is a thorough reading and re-reading of the record pleadings, and transcript(s) to select the issues in the case. These are the points which will be headings in your brief. While reviewing the record and transcripts you are, of course, looking for significant errors that may lead to reversal. Obviously one cannot spot such errors without keeping abreast of current case law. Other helpful sources for issue spotting are the documents, motions, and memoranda filed by the trial attorneys;     any disputes at trial involving the admissibility of evidence, or jury instructions; arguments by counsel to the judge or jury; objections by counsel to evidence or arguments (such as inflammatory witness testimony); and court rulings during summary judgment proceedings or trial.

Your job is to carefully review the entire record of the trial court proceedings, from initial complaint to final judgment, looking for unfair, irregular or erroneous rulings by the judge.

Finding and phrasing the issues is one of the most difficult tasks in brief writing and requires considerable thought and broad knowledge of the law.

Discussion with colleagues or others can provide additional perspectives on your case. Attorneys who are criticized for constantly talking about their cases are often searching for insights they may have overlooked. Even an issue or point not argued extensively below may provide a basis to win an appeal.

One appellate attorney handled a criminal case in which the defendant's trial attorneys had argued extensively that the police had conducted an illegal search of a vehicle.           The officers had claimed that the vehicle was stopped because of faulty tail-lights. Although it was a minor point, the appellate attorney argued that although one tail-light was out, that type of car was equipped with four tail-lights, while the law required only two. Thus he argued that the officers' initial reason for stopping the defendant was improper, so it did not matter that the search after the stop was justified. The appellate court agreed and reversed the lower court's ruling upholding the motions to suppress and dismiss.

When initially gathering possible issues, don't be afraid to list all possible issues. Deciding which issues to include and which to omit is not a precise science. Obviously you must omit issues which, after further research, are found to be without merit. But arguments abound concerning whether to include all issues. On the one hand including marginal issues may take the appellate court's attention away from the more tenable issues in your arsenal.

Further, if you list too many issues in your brief the appellate court may find it hard to believe that a learned trial judge would commit that many reversible errors. The writer's credibility might suffer as a result.

Also, it is always important to remember that appellate judges spend their working lives reading briefs-thousands of them, many poorly written and confusing-so it is a good rule-of-thumb to draft briefs that are as short and simple to read as possible.

If you do decide to include a secondary issue you are not especially enthusiastic about (remember the tail-light), be honest with the appellate court:

Explain that the issue may be minor, but that you feel compelled to raise it.

Also, think seriously about discussing any minor issues toward the end of your brief.

After narrowing your issues, look at what’s left and examine your side*s strengths and weaknesses and the strengths and weaknesses of the other side. Argue with yourself from your opponent's point of view. Don't be your own worst enemy by thinking only of your own arguments. Unless it is really an "easy appeal" you need to see the case from the other side so that you can respond when the opposition makes its presentation.

IV. Framing Issues and Order of Discussion

The purpose of the issue(s) or question(s) presented is to state the precise legal issue(s) of your case, in a non-argumentative manner. The language used to frame your issues and the order chosen to present the issues to the court requires some attention.A well-written question makes the court's job easier because it specifically notifies the court of the crucial legal issues and operative facts. Further, a properly worded question bolsters your credibility by informing the court that you as an appellate writer understand the possible scope of appellate review and are presenting a viable and meaningful question to the court.

Your task of persuading and informing the court in the question presented is made a bit more difficult by a few formal constraints. One constraint is that you must present your issue as an indirect question, beginning with whether. Frame your issues(s), in terms of trial court error, not on abstract issues of law.

 Frame your issue from general to specific. That is, include the rule of law to be applied, and some pertinent facts of record. For example: "Whether the trial court erred in applying the doctrine of constructive possession against a passenger in an automobile owned by another in which police found contra band where the State presented no evidence that the passenger knew of the presence of the contraband." Careful wording is important. Let the court know "up front" that you understand the rules of appellate review and are presenting your appellate argument within the accepted rules.

V. Sections of the Brief

Generally appellate briefs contain eight sections: (A) Title Page, (B) Table of Contents, (C) Table of Citations, (D) Questions or Issues Presented, (E) Statement of the Case and Facts, (F) Summary of the Argument, (G) Argument or Discussion Section, and (H) Conclusion. (Note: Some appellate courts have administrative rules governing the type of paper, color of brief covers, length, margins, nature of contents, applicable citation rules, and binding and form of briefs, etc.)

The cover or title page appears on the front cover of your brief. Include the names and designations of the parties, the court hearing the case, the court which issued the verdict or ruling, the party whose brief this is, and the name and address of the attorney representing that party.

The Table of Contents should contain page references for each section of the brief, including your argument headings in full and other tables of the brief. The headings in the argument should be typed in uppercase; the subheadings in upper and lowercase, indented, and either underlined or in bold. A Table of Contents should not be a cryptic referral to a page number. Your goal is to clarify, to guide your reader.

C. Table of Citations (Table of Authorities)

The Table of Citations or Table of Authorities is an alphabetical list of the cases, statutes and other authorities used in your brief, divided into categories and paginated. First, list cases in alphabetical order, with citations. Then list constitutional and statutory provisions, and any administrative regulations.

Other authorities may be listed under miscellaneous or other specific categories. In the Table of Authorities you should list the page or pages of the brief on which each citation appears. Be sure to use the uniform system of citation adopted in the jurisdiction encompassing the appellate court.

D. Questions (or Issues) Presented

The purpose of this section is to state the precise legal issues in your case, incorporating the key facts of the case, in order to tell the court what the appeal is about. The number of issues in the case will generally determine the number of questions presented.

E. Statement of the Case and Facts

The best appellate attorneys secretly believe that appeals are won or lost on the statement of the case and the facts, not in the actual legal argument.

The theory is this: If, after reading an appellant's statement of the facts, the appellate court is persuaded that the appellant has suffered some unfair injury, the court will be inclined to reverse and will find a legal basis for doing so, since there are so many legal doctrines to choose from.

On the other hand, if the appellate court believes, after reading the briefs that the appellant is probably a scoundrel who is just trying to manipulate the system, the court will usually find some way to affirm. The single most important task in an appellate brief is to find the proper balance between portraying the facts in a light favorable to your client, and distorting the record.

If you do cross the line into distortion, your opponent will usually point that out to the court, and you will lose your credibility and probably the appeal; but if you don't state the facts favorably, you won't win the heart and mind of the court and may lose for that reason.

In every appeal, with a few exceptions, the clerk of the lower court transmits a record of the proceedings to the appellate court. Usually, insuring that a proper, complete record has been transmitted is the obligation of the appellant. The record usually consists of all the pleadings, motions, and other documents filed in the lower court, that court's opinion, all exhibits and evidence introduced in the trial court and transcripts of testimony taken during the course of the court proceedings. The record constitutes the appellate court's sole "official" source of information about the lower court proceedings.

Virtually all court rules require that each assertion of fact in a brief be cited to a specific page in the record. That is so not only when you recite a fact in the Statement of the Case and Facts, but also when you analyze the fact in the Argument section of the brief-even though the reader would be able to find the citation by a search through the Statement of the Case and Facts.

A shortened version of the record called an appendix (required in some state jurisdictions and most federal circuit courts, and optional in others) helps appellate judges focus on important documents or evidence which may be buried in a voluminous record. Only items already in the record on appeal may be included in an appendix-the appendix may not be used as a way of adding new items to the record on appeal. Even in those jurisdictions that do not require an appendix to be filed, appellate judges appreciate your submit ting one with your brief. The appendix may be attached to the brief itself or be a separate labeled document. Check the rules in your jurisdiction regard ing submission of an appendix. In addition to record excerpts, an appendix may include law review articles, out-of-state cases, and excerpts from treatises to which you have cited in your brief. Although the judges can find these things for themselves, they will appreciate your doing it for them.

The purpose of the Statement of the Case and Facts is to show the appellate court that it has jurisdiction over the case, to explain the procedural context in which the issues on appeal arose, and to provide the court with the factual background of the case. Include the type of case (i.e., contract, slip-and-fall, etc.), where litigated, and date and nature of the order appealed. Many times it is recommended, and in some jurisdictions required, that this section of your brief be divided into two parts (i.e., Statement of the Case and Statement of the Facts).

First, outline the procedural history of your case. The standard of review from a motion for summary judgment, for instance, generally differs from the standard of review of a jury verdict. Assist the appellate court with a clear, unencumbered procedural overview of the path your case took below and indicate the name of each party to the appeal, the party's position (Appellant, Appellee, etc.), the party's status in the court below (plaintiff, defendant, etc.).

Next, set forth an accurate statement of the facts of the dispute. This statement of facts can be crucial to your appeal. It too is often best accomplished in a chronological narrative, like a story. Your statement of facts must be accurate, i.e., contain only the facts of record, and be non-argumentative. However a good statement of facts must also be persuasive.

F. Summary of the Argument

The summary is often the most difficult part of the brief to write, yet it is one of the most important sections. It should convey the heart of your argument and persuade the court to accept your view of the case. It should not be a mere repetition of the headings or issues listed in your table of contents. It should not be simply a series of conclusions. It should include your main conclusion and the facts and legal principles relevant to that conclusion. It should distill and logically present the main components of your argument. In short, your summary should be persuasive, complete, and to the point.

The argument, complete with citations to facts of record and authorities in support, should cover each issue on appeal. Briefly, tell your reader what you are going to cover, explain the in's and out's case, and then make your point.

Former judge James E. Lehan of the Second District Court of Appeal of Florida, has formulated a list of dos and don’ts for the argument section of the appellate brief. Many of his comments are applicable to effective legal writing generally, and have been discussed elsewhere in this article. Those particularly relevant to brief-writing are included below:

Be sure your argument tracts your statement of facts.
Be sure your cases stand for what you say and you say what the cases stand for.
Check the accuracy of your citations.T
 

1. Don't string cite without good reason. Choose one, two or three cases that support your view.

2. Don't personally criticize the opposing lawyer or party.

3. Don't try to impress the court by using foreign words or legal jargon unnecessarily.


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