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Florida Bar Journal

Taking a Swing at Appellate Brief Writing

Appellate Practice

Baseball and the law have been connected since Judge Kenesaw Mountain Landis, U.S. district court judge for the Northern District of Illinois, was hired as the first baseball commissioner in 1920.1 I decided to use the connection between these two subjects to discuss appellate briefs. This article includes some tips on how to hit a home run with an appellate brief.

Keep Your Eye on the Ball

Loss of focus can be disastrous in both baseball and brief writing. In baseball, playing good defense, moving runners along, and not walking batters are techniques to achieve the ultimate purpose: winning the game. Distractions such as hotdogging, concentration on personal statistics, and always going for the homer on offense or for the strike-out on defense may lead to additions in the loss column.

Maintaining one’s focus on the desired result is also important in brief writing. You should specifically identify the outcome you are seeking, and you should not waste time and effort on items that do not advance your goal. Bryan Garner describes the purpose of brief writing as writing “the winning brief.”2 Everything in your brief should be designed to persuade the court to rule in favor of your client in a specific manner. As one writer has observed, “a brief that didn’t win, however close to perfection it may have come, just wasn’t an effective brief.”3

The First District Court of Appeal has stated that the fundamental purpose of a brief and its appendices in appellate practice is to acquaint the reviewer with material facts, points of law involved, and arguments supporting the respective parties’ positions.4 The court has identified the fundamentals and techniques required to achieve your purpose. Playing sound, fundamental baseball — like laying down a sacrifice bunt or “hitting behind the runner” — helps achieve the goal of scoring more runs than the other side. Similarly, writing a sound, fundamental brief — including making concessions when necessary and sticking to relevant disputes — helps achieve the goal of winning your requested relief.

Be a Five-tool Player

In baseball, a five-tool player is one who excels at hitting for a high batting average, hitting for power, base-running, throwing, and fielding. Some of the game’s greatest players, such as Willie Mays, Mickey Mantle, and Roberto Clemente, have been dubbed five-tool players. In brief writing, a five-tool player is the attorney who drafts excellent issues and excels at writing a persuasive statement of facts, writing an effective summary of the argument, developing an argument, and crafting a conclusion. The attorney who regularly does these well will end up in the brief writers’ hall of fame.

Know Your Audience

Every true baseball fan is familiar with the Norman Rockwell image of three umpires looking at the sky during a rain delay. They want the rain to stop so they can yell, “Play ball!” In the legal field, the judge’s role has been compared to that of an umpire. Chief Justice John Roberts, in the opening statement at his confirmation hearings, stated:

I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes and not to pitch or bat .5

Just as a catcher helps the umpire by framing the strike zone, brief writers need to help the legal umpires call balls and strikes objectively by understanding that judges 1) do not want to have to make your arguments for you or guess at what you want; 2) want the correct facts and law presented to them in a concise manner; and 3) want to understand the implications of the decision you are asking them to make. These are tips that will help you ensure the umpire within the courtroom makes the right call.

Know the Rules of the Game

“Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules.”6 Judges and umpires do not care whether the lawyer or ballplayer believes that a rule does not make any sense. They will enforce them as written. Hitting a game-winning grand slam in the bottom of the ninth will be futile if you are standing outside of the batter’s box. You will be declared out; your team will lose; and you will suffer humiliation.

Failure to follow the rules related to brief writing may result in a similar outcome. Fla. R. App. P. 9.210 outlines the requirements for appellate briefs. Rule 9.210 has over 40 requirements concerning the content and formatting of briefs. Failure to follow these rules may result in the court striking the noncomplying brief.7 Repeated violations may result in a referral to the Bar for appropriate action.8 As one baseball writer suggested, “Every baseball feat seems all the more amazing because it is accomplished within the confines of an orderly universe.”9 Because of the volume of work faced by appellate judges, decision-making must also occur in an orderly universe. Adhering to the rules for brief writing helps to ensure that order is maintained.

Know the Playing Field

A team that does not know the playing field — including how balls carom after hitting the outfield walls, whether the infield is slanted toward the foul lines, or where fair territory begins — cannot expect to come out with a victory.

Much like the playing field in baseball, the playing field in an appellate court is the evidence and argument presented in the trial court and brought to the appellate court in the record on appeal. Matters not presented to the trial court are in foul territory and are not properly included in the record on appeal, because appellate review is confined to matters contained in the appellate record.10 Even if matters were presented to the trial court, they are not in fair play if they were not included in the record on appeal.11

Walking the playing field prior to the game, gauging the hardness of the infield, checking for ruts in the outfield, and taking caroms off the outfield wall are essential to proper preparation. Similarly, talking to trial attorneys and carefully reading transcripts, pleadings, and exhibits are essential to preparing for the appellate ball game.

Play “Billy Ball”

Billy Martin was an eccentric, a hothead, and a heavy drinker.12 He was, however, an innovative baseball manager willing to try unusual and unexpected things. His unusual style became known as “Billy Ball.”

St. Louis Cardinals Manager Tony La Russa sometimes bats his pitcher eighth, rather than in the customary ninth position. Many people are skeptical of his approach; however, his willingness to be innovative has made him one of the winningest managers in baseball history, with 2,638 wins prior to the 2011 season.13

Many times at the beginning of the brief-writing process, it is essential to play “Billy Ball” or contemplate batting the pitcher eighth. Let the madman run loose.14 Consider and explore many issues and possible arguments, though many of them may ultimately be rejected.

Play Small Ball

A baseball game is not won with a single swing or a single pitch. A player, however, must concentrate on the task at hand, such as the next swing, the next pitch, or the next situation he or she will encounter in the field.

Similarly, the numerous parts involved in an appellate brief and the numerous hours involved may seem insurmountable. However, if you take one task at a time, you will reach the ultimate goal of completing a “winning brief.” For example, you could start with reviewing the record; next, conduct the research; then write the argument, do the facts, do the argument, and check the cites.

Research Is Critical: Don’t Miss the Important Cases

The curse of the Bambino was cited as a reason for the failure of the Boston Red Sox baseball team to win the World Series in the 86-year period from 1918 to 2004. Supposedly, the curse began after the Red Sox sold Babe Ruth, sometimes called “the Bambino,” to the New York Yankees in the off-season of 1919-1920. Before that time, the Red Sox had been one of the most successful professional baseball franchises, winning the first World Series and amassing five World Series titles.

In an effort to break the curse, the Red Sox, in 2003, hired baseball researcher and statistician Bill James as a special consultant. Many people credit James and his research with contributing to the end of the Red Sox’s 86-year championship drought. This ultimate baseball researcher created many new statistics based on his research that more accurately reflect a player’s value to a team than traditional, outmoded measures.15 The Red Sox, therefore, were better able to evaluate their players as well as opposing teams. The curse ended in 2004 when the Red Sox swept the St. Louis Cardinals to win the World Series. The breaking of the curse may be credited to research.

Good research skills are critical in appellate brief writing. Learning how to effectively use Westlaw, Lexis, and other research tools is essential.Failing to hone your research skills may result in missing cases, statutes, and legislative history that may have a direct impact on your case. This failure may result in a large loss of credibility, may ultimately result in losing your case, and could even lead to sanctions. Keyciting and Shepardizing are also critical to ensure the law you cite is still valid.

New research tools are being developed all the time. In baseball, statistics track the balls put in play by a batter, including the percentage of line drives hit. “Starting this year, a company called Sportsvision will begin using cameras at every major league park to track this information.”16 Similarly, in the legal community, technology is constantly improving a lawyer’s ability to research. Brief writers need to keep up with these new research tools to ensure they can conduct the most thorough research possible.

Have a Good Game Plan: Development of Issues

A number of baseball analogies relate to issue development. These include having a game plan of how you are going to reach your goal, knowing the strike zone, and knowing how to fill out a lineup card.

Have a Game Plan Greg Maddux won 355 games in his major league career.17 No one would describe him as a fireballer. Various announcers described him as cerebral and stated that he had a game plan to get batters out. Pitch choice, sequence, and placement were essential to his success.

Issue selection and placement are essential to writing a winning brief. Take time in drafting and framing your issues. Justice Felix Frankfurter stated, “[i]n the law the right answer usually depends on asking the right questions.”18 I would go one step further. Not only must you ask the right question, but you must phrase it in the right manner to get the desired result. Too many briefs seen by appellate courts entirely miss critical issues in cases.

Further, in many cases recently, I have seen parties attempting to raise issues in oral argument that were not separately stated as issues in their briefs. Florida’s appellate courts will not address issues not clearly set out in the brief.19 This general rule holds true even when the record reflects the possibility of reversible error.20 It is, therefore, crucial to frame the right issue from the very beginning. I recommend reading the record thoroughly and discussing possible issues with colleagues to ferret out the most promising prospects.

Know the Strike Zone — In the 1950s, Sandy Koufax was a mediocre pitcher. the 1960s he was so good that Yogi Berra allegedly said, when talking about the 1963 season, “I see how he won 25 games; what I don’t see is how he lost 5.”21 The difference was that Koufax found the strike zone.

An appellate brief writer also has to know how to find the strike zone. The “shotgunning approach” is not productive. I recently conducted a survey of all the intermediate appellate judges in Florida for an American Inns of Court presentation. One of the questions concerned the maximum number of issues that should optimally be raised in an appellate brief. The overwhelming majority said three or four. I personally have rarely seen a case that has more than three meritorious issues. No matter how diligent the reader, especially an overworked one, maintaining attention is extremely difficult when the brief raises issues that lack merit. Unnecessary issues in briefs, like unnecessary walks in baseball, will come back to haunt you.

Filling Out the Lineup Card Ricky Henderson was probably the best leadoff hitter of all time. He combined speed, power, and a high on-base percentage. You do not want a leadoff hitter who seldom gets on base, is slow, and will not steal bases. Similarly, in your brief, you do not want to lose the reader by putting unproductive issues first. When filling out your appellate lineup of issues, always put your best hitter up front.

Don’t Swing at an Unthrown Ball I once saw a batter swing at a pickoff throw to first base. It reminds me of an appellee who files an answer brief that does not address the issues raised by the appellant or who raises issues without filing a cross appeal. Failure to address issues in the same order as raised by the appellant will cause confusion for the court.22 Failing to properly raise issues on cross appeal may result in the court not addressing those issues. Both practices are inappropriate. The men and women in black will frown upon them.23

Be an Accurate Reporter

Vin Scully, a Baseball Hall of Fame member, has been broadcasting Dodger games for 61 years.24 Scully is both entertaining and accurate when presenting a game to his audience.W.P. Kinsella, on the other hand, wrote the very entertaining novel Shoeless Joe, which was turned into the movie Field of Dreams.25 Although Kinsella had to be entertaining as a novelist, he was under no obligation to be accurate in presenting facts.

When presenting the facts, a good brief writer should, of course, emulate Scully, not Kinsella. Providing an accurate representation of the “material facts” is essential. It is not, however, necessary to repeat every date or relate irrelevant evidence that has no bearing on the issues raised. To the contrary, it is important to present all material facts, even if they are adverse to your position.26 Facts should not be embellished to support your position. For instance, a 400-foot home run should not be reported as a 500-foot shot.27 Facts may be presented in a manner that is entertaining and in the light most favorable to your client — as long as they are accurate.

“There’s No Crying in Baseball”

The most famous line in the movie A League of Their Own was uttered by Tom Hanks, who played the manager of an all-women’s professional team in the 1940s. He repeatedly told the character played by Betty Schram, “There’s no crying in baseball.”28

Many times, sitting in oral argument or reading appellate briefs, judges are aching to use the same line. Emotionalism and jury arguments rarely work in an appellate court. Do not include sensationalized, irrelevant facts in your brief. A rational presentation concerning the rightness of your client’s legal position will play better in an appellate presentation.

Avoid the Rhubarb, and Don’t Be Earl Weaver

Bench-clearing brawls in baseball used to be called rhubarbs. Most of the time they involved pushing and shoving and a lot of nasty words. Although some hardliners would say you have to show your manhood, no one has ever demonstrated that rhubarbs aided in winning a game. Umpires hate having to get in the middle to break up the scuffle.

Earl Weaver, the former manager of the Baltimore Orioles, was known for being abusive to umpires. He would curse and scream, as well as kick dirt on them. This abusive behavior probably did not lead to any additional victories for the Orioles. In fact, on one occasion, umpires were so unhappy with Weaver’s behavior that they ejected him before the game had even started.29

The umpires of the legal profession do not like breaking up brawls between lawyers or seeing abuse heaped on their colleagues.30 Do not personally attack trial or appellate judges or your opposing counsel. Assuredly, no one has won because of this behavior; at best, they may have won in spite of it.

Don’t Be a Hotdog

Showing off can cost you in baseball. Trying to look fancy while making a catch may lead to an error. It can also cost you in brief writing. Overuse of legal jargon, Latin, and 10-dollar words is not helpful. Demonstrating that you are an expert in obscure legal theories without sufficient explanation is unwise.

Your audience consists of appellate judges who, on any day, may be called upon to be experts in six different areas of the law. Fancy descriptions of scientific tests with technical terms may start judges’ heads spinning. Brief writing is not about seeking a grade on a term paper or trying to impress a client with brilliance. The purpose is to clearly, concisely, and accurately present your case to convince the judges to rule for your client. At its best, brief writing is taking a complex matter and making it simple to understand.

Most Brief Writers Are Not Abbott and Costello

Bud Abbott and Lou Costello performed what is probably the most famous comedy skit about baseball, “Who’s on First?” These men were entertainers. When performing their comedy, they were not on the field attempting to win a ball game. The best players take the game and their profession seriously. Humor in brief writing rarely succeeds. For people trying to decide serious issues — such as the legal rights of the parties — humor generally falls flat. The clients whose rights are being affected will probably not appreciate misplaced attempts at comedy. Comedy is best left in the clubhouse.

Bloopers Will Not Help Your Argument

Dizzy Dean purportedly said, “Anybody who’s ever had the privilege of seein’ me play ball knows that I am the greatest pitcher in the world. And them that ain’t been fortunate enough to have a gander at Ol’ Diz in action can look at the records.” He further added, “Let the teachers teach English and I will teach baseball. There is a lot of people in the United States who says isn’t, and they ain’t eating.”31 Yogi Berra, too, had a humorous way with words; he once purportedly said, concerning being tutored by Hall of Fame catcher Bill Dickey, “He’s learning me all his experience.”32

There used to be a television show that showed the most humorous baseball errors of the week. These bloopers were very funny to the viewers, but may have cost teams ballgames. In a similar manner, grammatical errors, quaint phrasing, incomplete sentences, and misspellings are distracting, cause a loss of clarity, and may result in a loss of credibility with the court that taints the entire brief.

Argument

Arguing in baseball will generally not get you far. In brief writing, however, a well-structured argument may result in victory.

There are many theories about how to structure the body of an argument. Two methods of arguments taught in law school are IRAC (issue, rules/relevant law, application/analysis, conclusion) and CREAC (conclusion, rule, explanation, application, and conclusion).33 Although each brief, depending on the issue, may call for a somewhat different structure, several law clerks from the court and I prefer a modified CREAC.

First, each issue should contain the legal standard of review. A conclusion or a road map at the beginning really helps the reader focus when he or she is reading an argument. Beginning with the general law or rules applicable to an issue and working to the more specific is an easy method to follow. The explanation should be clear and concise. The application of the law to the facts of the case at issue is critical. Too many briefs state the law and just provide a restatement of the facts without any application. The application of the law to the facts is crucial in determining whether an authority is applicable or distinguishable.

Sloppy Extra-innings Games

Few baseball games that go over three hours keep the fans attentive. Overly long games generally are sloppy and involve poor defensive play and far too many pitches that do not find the plate.

Brief writing is similar. Few briefs need to be 50 pages long. Crisp, concise writing is important for judges who have to read thousands of pages of briefs and bench memoranda every year. Former appellate judge Larry Klein, commenting on brevity, stated: “Candor, brevity, and clarity get the best results, so avoid the temptation to fall in love with your own writing. . . . Judges at all levels simply do not have the time to appreciate the finer points of your writing ability. Simplicity and brevity are much more effective.”34 As the U.S. Court of Appeals for the 11th Circuit has stated, “Attorneys who cannot discipline themselves to write concisely are not effective advocates, and they do a disservice not only to the courts but also to their clients.”35

Appellate judges do not enjoy unduly long appellate briefs any more than baseball fans enjoy four-hour-long, poorly played baseball games.

Hidden Ball Tricks, Spit Balls, and the Hall of Shame

In baseball, picking off a runner by executing the hidden ball trick is to be applauded. An infielder or outfielder pretending to catch a ball to prevent a runner from taking an extra base is playing smart baseball. Gaylord Perry won 314 games on the wings of a “vaseline ball.”36 Gabe Paul, a baseball executive, defended Perry by saying, “Gaylord is a very honorable man. He only calls for the spitter when he needs it.”37

Deception and hiding legal authority are looked upon less fondly when they take place in appellate briefs. Raymond T. Elligett, Jr., and John M. Scheb, Jr., described the responsibilities of lawyers to exhibit candor to the court: “We remind counsel that a lawyer’s duty of candor to the court must always prevail in any conflict with the duty of zealous advocacy. Counsel must disclose legal authority in the controlling jurisdiction known to be directly adverse to counsel’s client, which opposing counsel fails to cite.”38 Thus, the hidden ball trick is inappropriate in brief writing.

Candor also involves accurately representing the holdings of cases. Citing to sentences out of context and, thus, misrepresenting the holding of the court is much like throwing a spitball. It worked for Gaylord Perry, but it will not be good for your legal career.

Have a Good Closer

Mariano Rivera had over 500 saves to begin the 2011 season.39 Few people would dispute that much of the Yankees’ success has been attributable to his ability to close games. As an unabashed Yankees fan, I would say he is the greatest closer of all time.

Similarly, the ninth inning of a brief is the conclusion. Losing a baseball game in the ninth inning is demoralizing, and compromising your case with a poor conclusion is inexcusable. Pitching an effective ninth inning involves focus, keeping runners off base, and getting the last three outs on the fewest number of pitches. In a brief, “[a]n effective conclusion should be brief, to the point, and must tell the court the relief being sought.”40

World Series Champion

True baseball fans will tell you that when their team wins the World Series, it is exhilarating. When the Yankees won in 2009, I was ecstatic. Writing a good appellate brief and winning the case might not be quite as exciting as winning the World Series, but it sure feels good. If you follow these tips, you are more likely to experience that exhilaration during your legal career.

1 David Pietrusza, Judge and Jury: The Life and Times of Judge Kenesaw Mountain Landis
(1998).

2 Bryan A. Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts
(2d ed. 2004).

3 Frederick B. Wiener, Briefing and Arguing Federal Appeals 125 (rev. ed. 1967).

4 In re Barret’s Estate, 137 So. 2d 587, 594-95 (Fla. 1st D.C.A. 1962).

5 Confirmation Hearings on the Nomination of John G. Roberts, Jr., to Be Chief Justice of the United States Before the S. Judiciary Comm., 109th Cong. 549-555 (2005) (opening statement of Judge John G. Roberts, Jr., available at http://www.gpoaccess.gov/congress/senate/judiciary/sh109-158/55-56.pdf).

6 Id.

7 Greenfield v. Westmoreland, 32 Fla. L. Weekly D533 (Fla. 3d D.C.A. Feb. 21, 2007); Williams v. Winn-Dixie Stores, Inc., 548 So. 2d 829 (Fla.1st D.C.A. 1989).

8 White v. White, 627 So. 2d 1237 (Fla. 1st D.C.A. 1993).

9 Roger Rosenblatt, Take Me Out to the Ball Game,
Parade Magazine, March 27, 2011, available at http://www.parade.com/news/views/guest/110327-take-me-out-to-the-ball-game.html.

10 Thornber v. City of Fort Walton Beach, 534 So. 2d 754 (Fla. 1st D.C.A. 1988).

11 Rhine’s v. Ploof Transfer Co., 313 So. 2d 791 (Fla. 1st D.C.A. 1975).

12 See Sporting News Oct. 26, 1968 (quoting Billy Martin: “Temper is something the good Lord gave me and I just can’t throw it out the window.”);
David Faulkner, The Last Yankee: The Turbulent Life of Billy Martin
(2009).

13 Baseball-Reference.com, http://www.baseball-reference.com/players/m/maddugr01.shtml.

14 Garner,
The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts
(2d ed. 2004).

15 Bill James, T he New Bill James Historical Baseball Abstract
(2001).

16 Dan Rosenheck, Keeping Score: Statistic Combines Physics and Luck,
N.Y. Times,
April 3, 2011.

17 Baseball-Reference.com, http://www.baseball-reference.com/managers/larusto01.shtml.

18 Rogers’ Estate v. Helvering, 320 U.S. 410, 413 (1943).

19 Fla. Emergency Physicians-Kang & Assocs. v. Parker, 800 So. 2d 631 (Fla. 5th D.C.A. 2001).

20 City of Bartow v. Brewer, 896 So. 2d 931 (Fla. 1st D.C.A. 2005).

21 Peter Handrinos, The Funniest Baseball Book Ever 112 (2010).

22 Rolling v. State ex rel. Butterworth, 630 So. 2d 635 (Fla. 1st D.C.A. 1994).

23 American Baseball Cap, Inc. v. Duzinski, 308 So. 2d 639 (Fla. 1st D.C.A. 1975) (stating that appellee’s brief must address issues raised by appellant).

24 Richard Sandomir, Daffy Days of Brooklyn,
N.Y. Times,
Oct. 5, 2006.

25 Field of Dreams
( Gordon Co. 1989).

26 L arry A. Klein, The Evolved Appellate Brief,
Litig. at 38, 38-42 (Fall 2010).

27 Jane Leavy, The Last Boy: Mickey Mantle 83-102 (2010).

28 A League of Their Own
(Columbia Pictures 1992).

29 On this Date,
Chi. Trib. , Aug. 15, 2004.

30 Phillip J. Padovano, Florida Appellate Procedure 310, 312 (2011).

31 Dizzy Dean Quotes, Quotes From and About Dizzy Dean, Baseball Almanac, http://www.baseball-almanac.com/quotes/quodean.shtml.

32 Carlo DeVito, Yogi: The Life and Times of An American Original 106 (2008).

33 See Charles R. Calleros, Legal Method and Writing 72-74 (3d ed. 1998) (discussing IRAC);
David S. Romantz & Kathleen Elliott Vinson, Legal Analysis: The Fundamental Skill 89-96 (1998) (discussing CREAC).

34 K lein, The Evolved Appellate Brief,
Litig. at 38 (Fall 2010).

35 Davis v. Singletary, 119 F.3d 1471, 1476 n.2 (11th Cir. 1997).

36 The Biggest Cheaters in Baseball, ESPN Page 2, http://espn.go.com/page2/s/list/cheaters/ballplayers.html .

37 Id.

38 Raymond T. Elligett, Jr. ,
and John M. Scheb,
Florida Appellate Practice and Advocacy 247 (1998).

39 Mariano Rivera, 500 Saves , The New York Yankees Official Website, http://mlb.mlb.com/mlb/events/rivera500/index.jsp.

40 E lligett & Scheb,
Florida Appellate Practice and Advocacy at 178 (1998).

Judge James R. Wolf is a judge on the First District Court of Appeal. He expresses his appreciation to his law clerks, Sarah Bolinder and Jessica Poarch; his judicial assistant, Judy Tehan; and his wife, JoLen Wolf, an attorney at the Mills Firm, for their assistance.

This column is submitted on behalf of the Appellate Practice Section, Matthew J. Conigliaro, chair; Kristin A. Norse, editor, and Chris McAdams, Brandon Christian, and Bretton C. Albrecht, assistant editors.

Appellate Practice