Judge Diane Sykes of the Seventh Circuit has drafted a good article on writing appellate briefs. If you want any chance of winning on appeal—and getting paid by your client—you should heed her advice. I have summarized her advice and added additional tips.
- The shotgun approach on appeal never works. See Fifth Third Mortg. Co. v. Chi. Title Ins. Co., 692 F.3d 507, 509 (6th Cir. 2012) (“When a party comes to us with nine grounds for reversing the district court, that usually means there are none.”). By raising every conceivable issue, your strong issues will be drowned out by the weak ones.
- Address the standard of review, which is often dispositive. I assure you that your appellate judges will not forget to consider the standard of review simply because you failed to mention it. If the abuse-of-discretion standard applies, some circuit courts require an appellant to specifically identify what the lower court did that was a “miscarriage of justice.” See, e.g., Butcher v. United States, 368 F.3d 1290, 1298 (11th Cir. 2004).
- A brief must be organized, clear, and concise. As Justice Antonin Scalia bluntly said: “[I]t isn’t the judges’ job to piece the elements together from a wordy and confusing brief or argument.”
- Build and maintain your credibility. If you ignore adverse authority or facts, you lose credibility. Adverse authority includes not only binding cases directly on point (required by ethical rules) but also cases that tend to undermine your arguments. When I litigated cases, I was amazed at the number of times my opponents would fail to address adverse cases. Did they really think that their research skills were so advanced that only they would find the adverse cases?
- Consider your case from the perspective of an appellate judge, not a jury. You must explain why the result you seek makes sense in your case and future ones. For example, if you represent a criminal defendant, you could identify how a ruling in your favor would protect the constitutional rights of future defendants or could show how a ruling against your client would lead to police misconduct.
Judge Sykes offers other helpful tips in her piece. Members of the ABA can read the full article here.
If you live near Montgomery, Alabama, and want to earn CLE credit, consider taking my next CLE in December 2015. In my interactive CLE, attorneys will learn eight ways to counter adverse authority in their motions and briefs.