The Joy of Editing: Better Appellate Briefs
The saying, “If I had more time, I would have written a shorter letter,” is attributed to numerous historical figures from Cicero to Blaise Pascal to T.S. Eliot and Winston Churchill. While this is no doubt a reaction of appellate judges to some briefs that should have been edited more for length, the thorough editing of a brief encompasses many levels. Beyond striving to be succinct, the appellate practitioner must edit for clarity, accuracy, structure, completeness, and to try to make an often technical and dry subject readable and as interesting as possible.
Editing for Structure
Have you stated your case as simply as possible in the wording of the issues and summary of the argument? Have you provided the readers with a road map of where the brief is going? The summary of the argument presents one opportunity for these efforts, but some cases may warrant an opening paragraph before the facts.
If your brief has more than one issue, or more than one reason supporting an issue, have you placed your themes in the best order? We recommend the “Benatar” rule: Put your best argument first.1 Because many readers will assume the brief is structured this way, putting weaker arguments first and hoping to close strong may misfire.
Some cases present closer calls than others. Should a strong damage argument go before a weaker liability argument that would be the larger win? Consider consulting with the client on these choices.
Do your facts and your argument flow logically? Or are you jumping around? Have you edited unwanted repetition? There is nothing wrong with repeating your key points. Do your paragraphs contain a single point?
Ensure that facts are in the statement of facts, and not discussed for the first time in the argument section. It is okay to repeat key facts in the argument. It is not okay to include argument in the statement of facts.2
Editing for Length
Review the overall length of the brief. Can you shorten it without detracting from your case? Edit long sentences and “Faulkner-like” paragraphs. Some may disagree, but turning the page of a brief only to see a paragraph that consumes the whole page hurts the eyes and the attitudes of many readers.
Eliminate unimportant dates. Absent a statute of limitations or other timing issue, the precise day of an incident or the filing of the suit, or worse, the date of motions and hearings, is irrelevant. Sometimes a year or other marker of time may give context, and may be important to determine the applicable law, but most dates are distracting detail.
Remove string cites and long quotes from cases, which are a lazy substitute for analysis. If you do quote a passage long enough to indent, tell the reader the import of the passage before indenting.
Editing for Accuracy
Ensure that every factual allegation is supported by a record cite. Keep in mind how the facts are construed on appeal: For example, in favor of the jury verdict, or in favor of the nonmoving party in an appeal from a summary judgment or directed verdict.
Check the case cites, and Key Cite or Shepardize cases. Check quotes from the record and cases, and make sure you have quotation marks only around words taken from the record or an authority.
Quote accurately from cases and fairly characterize the holdings. Courts have criticized or sanctioned counsel for quoting a concurring or dissenting opinion as if it were the holding.3 The duty to be candid with the court includes disclosing directly adverse legal authority in the controlling jurisdiction.4 Consider going further, as you can expect the appellate judges and their staff attorneys to pick up adverse authority that may not be controlling.
Do more than run spell check — it will not pick up “trail” used for “trial.” Check your grammar and usage. Have you used “which” where you should have used “that”? Have you used “that” where you could omit it?
If you have been working from a draft on your computer, print it and read the hard copy. You may pick up mistakes you miss on the screen. Reading the brief in print makes it easier to tell if you have a paragraph (or thought) out of place, and to ferret out those long sentences and paragraphs.
Review the brief to make sure it complies with the applicable appellate rules. Courts have returned briefs or worse, when they transgressed the rules.5 One court denied a prevailing appellee costs when the brief used 58 footnotes to “brazenly evade” page limits. The court yearned for the days 400 years ago when an English court imprisoned the pleader of a 120-page pleading and ordered the warden to cut a hole in the pleading, put writer’s head through it, and lead him around Westminster Hall while the courts were sitting.6
Check the cover page, including the style and court, and the certificate of service.
Editing for Legalese and Other Writing Pitfalls
Edit passive voice, except for those few instances where you want it. Instead of “the order was entered by the court,” say “the court entered the order.” Avoid overusing adverbs and adjectives, like “clearly,” “simply,” “obviously,” and “certainly.” Some believe any use of such terms is overuse; those who feel otherwise may, in time, see the light. “Clearly” is viewed by most (all?) judges as a lazy substitute for effective writing that would make the point clear.
Write in the affirmative and reduce “nots.” Instead of “the appellant did not address” a problem, use “the appellant failed to address,” or “the appellant ignores” the problem.
Avoid converting action verbs into nouns, a writing lapse known as nominalization (itself a nominalization). Instead of “the court found the defendant’s actions were in violation of the statute,” use “the court found the defendant’s actions violated the statute” (or “the court found the defendant violated the statute”).
Eliminate “moreover,” “it must be remembered that,” and “it is interesting to note,” and other such useless introductory words and phrases. When a writer says “it is important to note,” does that mean earlier material was unimportant? If you need a transition phrase, use a real one like, “a separate rationale supports the court’s ruling.”
Jettison the words and phrases so many lawyers love and replace them with their simpler counterparts.
One appellate opinion quoted this paragraph from a brief: “The duty owing from defendants to plaintiffs in the abstract will vary, under White, relative to the juxtaposition of the real world environmental encasement of the two sides. The concept of causation would seem less plastic.” The court commented: “Briefs should be written in the English language!”7
Watch attacking words and phrases like “frivolous,” “clearly erroneous,” and “fundamental error.” The latter two phrases have specific meanings in appellate practice, so using them in another context could also cause confusion.
Avoid words that sound attacking, like saying the other side misrepresented the record or case holding. You can say they misread or miscomprehended, and convey the point without what might be deemed by some judges to be unprofessional accusations. Of course, you need to show the correct reading in your brief.
Eliminate redundancies, like “past history” and “collaborate together.”
Editing for Completeness
Could the judge base an opinion on your brief without any further research of the record or authorities? Have you included all the relevant facts?8 Could someone who knows nothing about your brief read it and get your point? Or have you assumed things you know, but have failed to tell them — about the facts, the law, or how the law applies to the facts?
Editing for Clarity
To best edit for clarity, you must do something many lawyers consider a foreign concept: You must prepare the brief ahead of its due date. Giving your mind a rest, so you read the brief “fresh,” is important — your audience (the judges and their staff attorneys) will be reading it that way.
When the brief approaches what you think is a final product, put it down for a few days. Then read it to see if you have assumed facts you have not included in the statement of facts – facts your reader needs to know to understand your points.
This is a good time to have a partner unfamiliar with the case read the brief. Also, send the draft to the trial counsel and the client to review. You would expect house counsel to review the brief, but nonlawyer clients may raise good points. To the extent they question why something is not in the draft, you can explain before the final product (for example, a factual issue they cannot win on because they are the appellant).
To the extent you explain passages these readers find unclear, you may find yourself rewriting the brief to incorporate your explanations. One test is whether your brief reads the way you would explain the facts and argument in conversation, cleaned up for looser phrasing used when communicating verbally.
Review the wording of issues to see if they include the right balance of pertinent facts and persuasive but not conclusory statements. For example, an issue worded “The court erred by entering summary judgment when there were disputed material facts,” is both uninformative and conclusory. Much better is an issue worded as follows: “The court erred in entering summary judgment for the defendant hotel on the ground that a criminal assault was not foreseeable, when there had been two armed robberies on the premises during the prior year.”
The wording of the issues and the summary of argument may both undergo several edits, as revising the rest of the brief refines the arguments.
It is the rare person who thinks he or she can perform multiple editing functions on a single read-through — and even the rarer person who is correct. After you think you have edited your masterpiece, put it down. Then, after a day or more, run it through the editing process again.
Thorough editing may sound tedious — and it is. But it may prevent the first-time reader from finding your brief tedious, or worse, confusing, incomplete, or unpersuasive.
1 Pat Benatar, Hit Me with Your Best Shot (1980).
2 See, e.g., Dowell v. Sunmark Industries, 521 So. 2d 377 (Fla 2d D.C.A. 1988).
3 See, e.g., Beam v. IPCO Corporation, 838 F.2d 242 (7th Cir. 1988); Sobol v. Capital Management Consultants, Inc., 726 P.2d 335 (Nev. 1986). A concurring opinion does not constitute the court’s decision unless a majority of the Florida Supreme Court concur in the opinion. Greene v. Massey, 384 So. 2d 24 (Fla. 1980).
4 R. Reg. Fla. Bar 4-3.3(a)(3).
5 E.g., Weeki Wachee Springs, L.L.C. v. Southwest Water Management, 900 So. 2d 594 (Fla. 5th D.C.A. 2004) (imposing monetary sanction).
6 Varda, Inc. v. Insurance Co. of North America, 45 F.3d 634 (2d Cir. 1995). This ploy would have no hope of working in federal appeals today, given the word count rule.
7 Gottreich v. San Francisco Investment Corp., 552 F.2d 866, n. 2 (9th Cir. 1977).
8 For a case sanctioning counsel for omitting material facts, see Hays v. Johnson, 566 So. 2d 260 (Fla. 5th D.C.A. 1990).
Raymond T. (Tom) Elligett, Jr., and Amy Farrior are board certified appellate lawyers and shareholders in Buell & Elligett, P.A., in Tampa. Mr. Elligett and Senior Judge John M. Scheb are authors of Florida Appellate Practice (5th ed. 2008), published by Stetson University College of Law.
A shorter predecessor to this article appeared in The Record: Journal of the Appellate Practice Section of The Florida Bar, and The Hillsborough County Bar Association Lawyer magazine.
This column is submitted on behalf of the Appellate Practice Section, Steven Brannock, chair, and Tracy R. Gunn, Kristin A. Norse, and Heather M. Lammers, editors.