Effective Brief Writing and Oral Argument: Gaining the Inside Track
This article is designed to help all practitioners become better brief writers and better presenters at oral argument. To that end, no matter how many briefs a practitioner has written or how many arguments he or she has made, it is always possible to improve. Further, even though a majority of a practitioner’s appeals may have been winners, that outcome may have been the result of extraneous factors rather than his or her appellate advocacy. Those factors range from having better facts to having sympathetic judges on the panel. This article will focus on the fundamentals that consistently produce winning appeals.
This article is solely my view of the appellate process, reflecting my nine years as a trial judge and 18 years as an appellate judge. While I am certain some of my appellate brethren may disagree with my views, I believe that most would agree with them.
The Brief
First and foremost, the practitioner should always cater to his or her audience. The key questions are: “Who is your primary and secondary audience” and “What are you trying to accomplish?” Your audience is, first, the appellate judges and, second, their law clerks, who are lawyers.
There are some basics that all practitioners should know before the brief writing begins. The judge is the person who has to read what you write. That judge should never be as familiar with your case as you, the brief writer. Therefore, it is your job to give the judge only the necessary information that he or she needs to know to affirm or reverse your case.
Next, it is safe to assume that the law clerks will, at some time, also read the brief. Therefore, you should also give the law clerks ammunition to lead them to the obvious conclusion that your cases are stronger than your opponent’s cases.
• Don’t Try to be Garcia-Marquez or Shakespeare — I have read countless briefs that seem to be the product of a stifled or frustrated novelist. They cause me to mutter to myself, “Gimme a break.” The effective brief writer should always strive for simplicity in wording and structure. Remember, you should not try to impress a judge with your command of the English language. Rather, present your case in a straightforward and simple way that leads the judge to conclude that you should prevail on appeal. That should be your single focus. Unnecessary fancy language and complex concepts should be left to the novelist or professor.
You, the effective brief writer, should state and argue only what is necessary. Leave out repetitive arguments. Do not present afterthoughts that distract from your case or leave the judge feeling that you were just trying to fill up pages because you have a weak case. And, of course, avoid footnotes. Although the practitioner may be trying to impress his or her client with a long, wordy, and poetic document, winning the appeal will impress your client far more than a lengthy, losing document.
The practitioner should strive to make his or her brief short, but interesting. Do not recite the history of the litigation. Appellate judges do not want to know about every motion that attacks the sufficiency of the complaint or about every amended complaint or pretrial motion. Rather, the only information that we want to know is why the trial judge was wrong or right. Therefore, you should simplify the issues and write straightforward prose to make your point. Strive to get to the heart of the matter as soon as possible. Then, buttress your argument with salient facts and your strongest law. Make sure to check your work. Rewrite, rewrite, and rewrite. One draft of a brief will not produce your best work product.
Next, focus on the case law that you cite. We all know that finding a case “on all fours” is often difficult or impossible, so do not fall into the common trap of citing a case on two and a half legs and calling it the seminal four-legged case. If the judge falls for it, his or her ever-vigilant law clerks will not. The law clerks take great pride in finding you wrong. So, what do you do when there is no case on all fours? I say, “Tell it like it is.” Tell the reader that there is no case “on all fours” and cite the cases analogous to your position. Similarly, if confronted by an opponent’s case that is better than yours, it probably is not on all fours either and you should distinguish it. In short, 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 Order of Importance: Getting the Kernel — The first thing I look at in a brief is the summary of the argument. This summary is my roadmap to what is right or wrong with the case. I will read the appellant’s summary of the argument first and then the appellee’s. At that point, I am ready to start on the appellant’s argument. I can then juxtapose it with the appellee’s argument.
The simpler the summary of the argument and the fewer the number of arguments, the easier it is to read. The easier it is to read, the more likely I am to get your point. The more likely I am to get your point, the easier it is to glean your argument. The easier it is to glean your argument, the better chance I have of finding your kernel of the case. The easier it is to find your kernel, the easier it is for you to prevail.
Note that the key word in the previous paragraph is “easier.” Yes, it is that simple. keeping your arguments to a minimum and making your points easy to read, your chances of success will be greater. The logic is simple: If you have 10 arguments on appeal and only a few really good arguments, why obfuscate the winning points? Therefore, concentrate on your strengths, which, in turn, will concentrate your reader’s attention on the important aspects of your case. Additionally, by making these arguments easier to comprehend and digest, it is easier for your reader to find the kernel of your case.
In order of importance, after the summary of the argument and the argument, the next most important section is the citation of authorities. Make sure that your citations are accurate, reflect the current law, and are in proper Bluebook form. Accuracy is important because it is easy to find a correct citation and difficult to find an inaccurate one. Further, improper citation form makes your work appear sloppy and reflects poorly on you as a brief writer. Remember, as an appellate advocate, you want to appear fully competent and thorough.
The other parts of the brief, although necessary, are not critical. The statement of the case should be brief, detailing the essential aspects of the case and how they affect the appellate issues. It is not helpful to restate every pleading and motion in the case. If the appeal is on a summary judgment issue, do not waste the readers’ and your time on superfluous matters. Again, stick to the important issues and leave out extraneous matters.
Last, I look to see what relief the appellant is seeking. Make sure that you tell the reader what you want as an outcome. If you seek a reversal, say so. If you seek a partial reversal and a partial affirmance, say so. If you do not tell the reader what you want, it will cause confusion, which is the last thing an appellate lawyer wants.
Oral Argument: The Art of Listening and Speaking
The practitioner must be totally prepared. Total preparation means that the practitioner is completely conversant with the record. Total preparation also means that you can recite all aspects of your, and your opponent’s, cited cases.
There are two common mistakes that appellate advocates make at oral argument. The first is coming to oral argument with a totally prepared script that regurgitates what is in the brief. The second mistake practitioners make is not listening to the judges’ questions and the tenor of the discourse.
If you come to court with a prepared script, you will quickly learn what it is like to be dropped from a plane without a parachute. A well-prepared judge can disable your argument and leave you wishing you had chosen divinity school rather than law school. Here are my suggestions:
• Your Roadmap — First, prepare an outline of the major points that you want to make at oral argument. Then, start with the most simplified, yet critical point. Assume that the judges have read your brief but that they have not completely understood what you wrote. Then, argue your point in a cogent, straightforward manner. As an example: “This case involves a simple issue. The issue is that the trial court should not have granted summary judgment because there are material issues of fact concerning the signing of the contract.”
You may feel that this opening is too simple and that you are stating the obvious. You are not. In dissecting the above opening, the judges hear: 1) this is going to be easy; and 2) they only need to hear a questionable material fact, and you win. It is that easy. As a general rule, having a complex argument is not good. Therefore, keep the argument elegantly simple.
• Your Starting Point — After this simple opening, you should start on the major argument of your first point. Use your time wisely and try not to repeat anything you have said because the judges heard your argument the first time. If the judges are not asking questions, do not panic and feel that you have to repeat your points. At any stage of your argument, if any judge asks a question, answer it as directly as possible, pause, and move on. Answer the questions honestly, even if you are afraid this might hurt your case. There is nothing worse than losing credibility with the court. The court may not always remember you told the truth, but they will definitely remember if you did not. Finish your point and shift into your next point on appeal.
Your next point should follow logically from your previous point. I suggest that you do not argue more than three or four points. Otherwise, you will not be able to properly present your strong points. Further, you may get bogged down on questions on your weaker points and may never get to the crux of your case. Time in oral argument is precious, and your time goes quickly. Therefore, just like in Florida Gator football, managing the clock is very important.
If a judge asks you a question, it generally means the judge has a nagging issue about your case that he or she wants addressed, or the judge is trying to use his or her question to influence another judge on the panel. If it is a nagging question, then you should answer the question as soon as possible. If you do not answer the question directly, or if you become evasive, the judge will find it difficult to listen to your argument because he or she will still be thinking about the unanswered question. The last thing you want to do is lose one or more judges for the rest of your oral argument.
Practitioners also commonly worry about the answer that they think the judge wants to hear rather than the correct answer. This is a big mistake. Even a harmful answer does not doom your case, and the judge often has a tangential concern that may or may not be related to winning or losing. Remember, the judge also may be just trying to figure out your case.
Sometimes, however, the judge’s question may require an answer that goes directly against your position. In that event, you should still answer the question directly and not worry about the answer’s effect on your appeal. First, you gain credibility with the entire court. Second, the question may be addressing only one judge’s point of view, and you still have two other judges that may side with you.
Other times, the question posed is asked with the express purpose of affecting one or both of the other judges. When this occurs, the practitioner becomes a tool of the questioning judge to obtain another vote on the panel. Answer the question and use logic or reason to solidify your argument. A simple example of a response might be: “Yes, your honor, Smith v. Jones does go against my position. However, that case is from another district, and I believe that my position should be adopted by this district.”
If you have a sympathetic judge, your response might be the perfect opening for that judge to ask you, why? The door is then open for you to make an argument that may win the day (at least with two judges and maybe even three).
Often, practitioners ramble and/or repeat what they have said if there are no questions from the bench. Remember, if there are no questions from the bench, present your basic arguments succinctly and ask if there are any questions from the bench. If there are no questions, then sit down. When the judges do not ask questions, it generally means that the case’s resolution is obvious to the judges.
• Your Demeanor — My last point addresses your demeanor in the courtroom. When you arrive at the courthouse for oral argument, come dressed and ready for battle. Do not approach the bench as if you had just fallen out of bed. Therefore, it is helpful to arrive early in order to be physically and mentally prepared for oral argument.
Next, avoid bringing pens or other objects to the podium and using them in conjunction with excessive hand movements. Also, bring all relevant information to the podium in an organized manner. If the judge asks you a question and you have to stumble through your briefcase for the answer, you will lose valuable time. Additionally, long pauses are awkward.
Finally, refrain from arguing with the judge or judges. I strongly suggest that this is a terrible tactic. Even if you think that you are smarter than the judge(s), they will not agree. The only thing you gain is an agitated panel. Agitating judges does not gain you respect.
And, pragmatically speaking, judges get the last word. If a judge asks you a question and you are in mid-sentence, either stop talking or quickly finish your sentence, and then defer to the judge. all means, however, do not argue with the judge. Arguing gains enmity, whereas intelligent respectful discussion gains respect. Thus, practitioners should remember that judicial respect is gained with honey, not vinegar.
Conclusion
In conclusion, practitioners should always try to simplify their briefs. Fewer important issues are better than a scattergun approach. Further, simple language rather than flowery or technical language will be easier to read and digest. At oral argument, practitioners should be prepared to forthrightly answer the panel’s questions. The most productive attitude is one that is polite and deferential. Therefore, carefully tread the line between humble acquiescence and firmly advocating for your client.
