by Raoul G. Cantero
After practicing as an appellate lawyer for 14 years, in 2002, I was appointed to the Florida Supreme Court. For six years, I observed from the other side of the bench lawyers practicing the craft I loved. When I met with my former colleagues in the appellate bar at conferences and Bar conventions, I was often asked, “What would you do differently now that you’re a judge and you’ve seen things from the other side?” There were few things I would do differently, but there were many I would try to do better. Observing others brief and argue cases also reinforced many ideas I had about how briefs should be written. This article attempts to articulate some of them.
But first, some caveats. First, this is not intended as a comprehensive explanation of brief writing. Rather, this article presents a few concrete tips for immediately improving appellate advocacy. Second, some of the ideas may not be unanimously accepted. I do not intend to provide a judicial consensus on appellate practice, only to offer my own ideas about what works. Third, I believe that adopting my suggestions will improve your appellate advocacy, but it may not win the case. Fortunately for both lawyers and their clients, the merits matter. Even the most well-written brief and convincing oral argument will not win the case if the merits are against you. Contrary to the opinion of many lawyers, the advocate’s job is not to win; it is to place his or her client in the best possible position to win. After that, it is the judicial panel’s job to correctly apply the law.
With those caveats in mind, I offer the following three ways to immediately improve your briefs. First, shorten the brief. Second, include an introduction. And third, divide the brief into subsections. These three steps may seem simplistic, but implemented correctly — which is the hard part — they can greatly enhance the force of the brief.
Shorten Your Briefs
Yes, your advocacy will improve if you write less. Lawyers find it hard to believe that shorter briefs have more impact than longer ones; and even when they believe it, they cannot bring themselves to shorten their writing. Lawyers are addicted to words. But when the lawyer views the appeal from the judge’s perspective — as everyone should — the reason becomes clear. Lawyers preparing their case become myopic. They think only about their brief, about telling the court as much as possible about their case, about explaining just how wrong the trial judge was. But the judge reads the brief from a much different perspective. To the judge, this is just one case among 10 to 20 others that will be argued around the same time. Each case file contains at least three briefs (not counting multiple parties or amici on one side or the other). At the maximum page limit for each brief, that amounts to 115 pages per case, or somewhere between 1,150 and 2,300 pages of reading before oral argument. Yours may be the 15th case on the docket, and as the judge picks up the file and sees your brief, he or she will immediately go to the table of contents or the back page to determine how much reading awaits her. She will either see a 50-page brief, cringe, and take a coffee break; or she will see a 20-page brief and smile, knowing that someone out there understands. That brief writer just won several brownie points.
To suggest that briefs be shorter does not imply that they should be less forceful or persuasive. The paradox of brief writing is that shorter briefs persuade more, not less.
There are three basic ways to reduce the length of briefs. These are: 1) presenting only the relevant facts; 2) reducing the issues on appeal; and 3) developing a concise writing style. All are difficult, which is why short briefs are rare.
• Detail only the facts relevant to the issues on appeal — The statement of the case and facts is designed to explain two basic things: what happened between the parties and how the case ended up on appeal. Many fact sections contain too much unnecessary information. Stick to the relevant facts — those the court needs to decide the case, perhaps a few background facts, and no more.
Dates in particular are much overused. A typical brief may begin like this: On July 13, 2007, the plaintiff filed the complaint. The complaint asserted three counts [explains each count]. On August 15, 2007, the defendant filed a motion to dismiss. The motion asserted [explains all the grounds for the motion]. . . . On September 27, 2007, the trial court denied the motion to dismiss. On October 10, 2007, the defendant filed an answer. The answer asserted 10 affirmative defenses [lists each defense].
All those dates are probably unnecessary, but their mere presence leads the reader to assume, at least initially, that they are relevant, thus, leading to confusion and disappointment when the reader discovers that they are completely irrelevant. The second lesson is that, depending on the issues on appeal, the entire paragraph, or a substantial part of it, may be discarded. It may not matter at all, for example, that the defendant filed a motion to dismiss; perhaps it was denied anyway, and the defendant later filed an answer. Most of the time it is also irrelevant when the complaint and answer were filed, or how many affirmative defenses were asserted. In fact, the only point that may matter on appeal is that, in a general sense, the plaintiff filed an action for breach of contract, or negligence, or whatever it is, and that the case went to trial. Identify the issues on appeal early, and draft the statement of facts with those issues in mind. Leave out the rest.
• Reduce the number of issues on appeal — Most appeals present too many issues. This creates two negative consequences. First, it increases the appellate panel’s skepticism. Rare is the trial judge who commits 10 reversible errors. Second, when many issues are raised, the strong ones are hidden among the weak. In the usual case, if the court does not reverse on issues one through four, it probably will not reverse on issue five. Take it out. Sometimes one strong issue is enough. All the weaker issues do is dilute the strength of the strong one.
For example, assume you have two issues you consider strong and three you consider weak. Each issue is five pages long, and the statement of the case and facts is another 10 pages. Also assume that two pages of the statement of the facts are dedicated to each issue. If you include all five issues in the brief, it will be 35 pages long. Of that, 21 pages is weak material (15 pages for each argument, six pages for the statement of facts), so only 14 pages of the brief are dedicated to strong arguments. Your brief is, therefore, 40 percent strong. If you discard two of the three weak arguments (despite your insistence, your client insists on leaving one weak issue, just in case), your brief is now 21 pages long and 67 percent strong. If you remove that last issue, the brief is now 14 pages and 100 percent strong.
While the above examples are deliberately simplistic, they nevertheless prove the point. Fewer issues make for shorter briefs, and shorter briefs are stronger briefs.
The retort to my argument is that many times lawyers can truly identify five really good arguments. This may be true sometimes, but it is true much less often than lawyers believe — which, again, is why so many briefs are longer than they need to be. To accomplish this task, lawyers need to develop an objective approach to the issues, which can be especially difficult for lawyers who handled the case at trial and who may be emotionally attached to certain arguments to which they had dedicated a lot of energy. Again, it helps to view the issue from the appellate judge’s perspective. Will the panel agree that the issue has merit, or will it feel constrained by the standard of review or conflicting evidence on the issue? These are difficult judgment calls for the appellate lawyer, but making them objectively is exactly what improves the advocacy.
• Improve your writing — This is the last, and most difficult, way to shorten the brief. Both as a lawyer and a justice, I have often edited the work of my associates or law clerks. I can regularly reduce the brief or opinion by about 10 percent just by cutting the fat. Most lawyers’ prose style is needlessly turgid. For example, I often read sentences like the following: “The police conducted an investigation of the defendant.” The same concept can be stated, “The police investigated the defendant.” The phrase, “conducted an investigation of,” is replaced with “investigated.” This may seem like a small change, but, made across 10 to 20 sentences per page and 20 to 50 pages in the brief, the result can be drastic. And note that no substance whatsoever is lost.
There are many other ways to shorten sentences and paragraphs to tighten briefs so they say everything you need, but no more.
Many books on legal writing, brief writing, and general writing style are available to lawyers. The problem is that most lawyers do not believe their writing can be improved or that it needs improvement. For most lawyers, it can, and it does. I try to improve my own writing constantly by reading at least one book on writing every year. Every lawyer who regularly writes should do the same.
Include an Introduction
The second simple way to improve the force of briefs is to include a short introduction at the very beginning of the brief. Its length depends on the complexity of the case, but usually it should be no more than two paragraphs to two pages. It should be very simple and designed to allow the reader (that is, the judge deciding your case) to place the case in context.
Usually, the first thing in the brief that judges read is the statement of the case and facts. But most briefs present the facts cold, without providing any context for them. For example, a typical statement of facts will begin like this:
Pretty City Police Detective Sneaky, working undercover, learned that the appellee, Joe Schmoe, and another subject, Steve Schmuck, wanted to buy cocaine. Sneaky met with the two suspects. They agreed to buy two kilos for $35,000. To complete the transaction, Schmoe followed Sneaky to his car and received one kilo. He was arrested and charged with trafficking in cocaine. Detective Sneaky confiscated $39,000 in U.S. currency, a pager, and two cellular phones. Both Schmoe and Schmuck denied owning the currency and refused to sign a property receipt.
The statement of the proceedings continues from there. From the first paragraph, the reader has no idea what the case is about or what the issues on appeal will be. What is missing is the context. Therefore, the reader — which, it bears repeating, is the judge deciding the case — does not understand the relevance of the facts he or she is reading. Sometimes these facts go on for 10 to 15 pages, and all the while the reader cannot understand which ones are important and why.
This problem is so common in briefs that it is nearly universal. It drastically reduces the force of the statement of facts, but it is easily remedied. Before the statement of facts, include an introduction to provide that missing context. Here is an introduction for the statement of facts described above:
This is an appeal from a nonfinal order denying a motion to lift a stay in a case involving a civil forfeiture. The order is appealable as an order denying an injunction. See Fla. R. App. P. 9.130(a)(3)(B); Klein v. Royale Group Ltd., 524 So. 2d 1061, 1063 n.1 (Fla. 3d DCA 1988). Pretty City confiscated property pursuant to an arrest for trafficking in cocaine, and instituted civil forfeiture proceedings unrelated to the state’s criminal prosecution of two defendants. The trial court stayed the forfeiture proceedings pending resolution of the criminal prosecution, and has refused to lift the stay despite several requests and despite the pendency of the criminal case for over 26 months. The issue on appeal is whether the trial court abused its discretion in refusing to lift the stay even though a) the court incorrectly assumed that it could not modify the orders of a predecessor judge; b) the appellee has not established his standing to contest the forfeiture; c) a stay is premature because the appellee has not invoked his Fifth Amendment privilege; and d) a continued stay is no longer reasonable.
The introduction accomplishes several objectives: It identifies the type of case for the judge — that is, it allows the judge, who will read this brief sandwiched between briefs discussing criminal search-and-seizure issues, child custody issues, and myriad others, to distinguish this case from all the others on the calendar that week. It provides context for the statement of facts that immediately follows. It immediately answers the implicit question about the court’s jurisdiction. Finally, it introduces the issues on appeal, to add even more context to the facts and allow the reader to understand their importance.
One reading this article may now protest that my advice is contradictory — on the one hand, I advocate for shorter briefs; on the other hand, I suggest adding up to two more pages to the brief for an introduction. But adding the introduction will paradoxically shorten the brief by forcing you to include in the statement of the case and facts only those facts that will be relevant to the issues presented. The introduction focuses the court on what the case is about, and also will focus the statement that follows on the important facts, discarding irrelevant ones.
Organize the Brief Into Subsections
The third and final way to immediately improve the force of your briefs is to organize the argument into manageable sections. Most arguments in the briefs have subparts, but often the brief fails to present them that way. For example, your argument may depend on the application of a four-part test. Rather than ramble on for 10 pages applying the test to your case, divide your argument into subsections, each discussing a specific part of the test. Such a subdivision accomplishes multiple purposes: First, it forces you to address each part of the test, and it demonstrates to the court that you are doing so. Second, it gives the reader (the judge deciding your case) a psychological break as he or she reads the brief. Imagine reading a 20-page chapter in a book. After 10 pages, you get tired, but you can’t decide where to stop. The reading starts getting tedious. Now imagine reading the same book, but with new chapters every five pages. It suddenly becomes a much easier book to read. The same is true with briefs.
To make your briefs even more forceful, introduce the subheadings with a paragraph summarizing them. Outline the argument’s organization either before the legal analysis or before each section of the analysis. This lets the reader know exactly how the brief is organized, making it easier to follow. It also allows you to break up the argument not only into sections but into subsections as well. This breaks up the reading and keeps the reader from having to plow through too much material at once.
For example, in a recent appeal, the appellant’s first issue was that the trial court abused its discretion in denying a new trial due to a juror’s nondisclosure of certain background information. The introductory paragraph to that section of the answer brief read as follows:
Appellant first argues . . . that the trial court abused its discretion in denying its motion for new trial due to a juror’s failure to disclose a 1997 foreclosure action. To obtain a new trial on this ground, Appellant must establish that (1) the information is relevant and material to jury service, (2) the juror concealed the information during questioning, and (3) the failure to disclose the information was not attributable to the complaining party’s lack of diligence. Roberts v. Tejada, 814 So. 2d 334, 339 (Fla. 2002) (quoting De La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995)). As we explain below, (A) Juror [Smith]’s eleven-year-old foreclosure action was not material to her jury service in this insurance case; (B) she did not conceal the information; and (C) its nondisclosure was a result of Plaintiff’s lack of diligence.1
The last sentence provides the outline, so the reader understands what is to follow and how the following sections are related to the major argument.
Of course, once you provide the outline, or “map,” make sure the argument actually follows that outline. An inadvertent but common mistake is to provide an outline, but then fail to match the argument’s organization to that outline. This mistake usually results from a lack of editing. Often writers will draft the argument slightly differently than was originally intended, or will move arguments up or down in the brief to reflect their relative strength, but then forget to cross-check the original introduction to make sure it remains consistent with how the opinion was eventually organized.
This article provides three simple ways to immediately improve one’s appellate advocacy: shorten the brief, include an introduction, and divide the argument into subsections and introduce those subsections with an outline. Some of these are fairly simple to accomplish; others, like shortening the brief, require will and discipline. All will make your briefs more forceful and will help place your client in the best possible position to prevail. The rest is up to the court.
1 Brief for Appellee at 15-16, Monaco Beach Club v. QBE Ins. Corp., 38 So. 3d 144 (Fla. 2d D.C.A. 2010) (No. 2D09-2083).
Raoul G. Cantero is a partner in the Miami office of White & Case, LLP, and heads that office’s appellate practice group. Since 1995, he has been board certified in appellate practice and is currently chair of The Florida Bar’s Appellate Practice Section. From 2002-08, he was a justice on the Florida Supreme Court.
This column is submitted on behalf of the Appellate Practice Section, Raoul G. Cantero III, chair, Kristin A. Norse, editor, and Chris McAdams and Brandon Christian, associate editors.