Writing an appellate brief is both a practical skill and learned art. Unless they have a vibrant appellate practice, most attorneys don't regularly write appellate briefs. However, knowing and understanding the strategy of what to include in a brief and how to structure that information is critical.
What is an appellate brief?
An appellate brief is a document that states an argument for a case that is being appealed. It is submitted to an appeals court by an attorney.
- Appellate briefs contain all the legal arguments an attorney is making to persuade the judges to rule in the client's favor. These arguments use both primary and secondary sources to make their case. However, unlike courts at the district or superior level, this is not the first time this case is being heard.
- As a result, appellate briefs have a unique function in the legal world. They critique a previous court's ruling and ask the appellate court to rectify the perceived legal misstep.
- Appellate briefs have a unique style which varies from jurisdiction to jurisdiction, making them an intimidating writing project for new or inexperienced attorneys. While the same rules that apply for regular legal writing apply for appellate briefs, each court or jurisdiction has particular expectations and norms that require careful observation.
How do I write a good appellate brief?
The question of what is a good appellate brief and what isn't is, in some ways, fairly subjective and depends on the mood and preferences of the presiding judge. However, there are some ways to make sure an appellate brief stands out.
- It may seem obvious, but it's important to take the writing seriously. A good appellate brief shouldn't be fired off without thought. A lot of legal writing is superfluous and, to put it mildly, in need of revision. A well-written brief will not only strengthen the case, but will also get the attention of the judge. In short, style matters.
- Appellate briefs should not follow a boilerplate template. While there are many useful tools available to help structure an appellate brief and argument, these should be singular in their approach and top-notch in their quality. Re-using previous templates only decreases the effectiveness of the argument.
- Finally, make the document flawless. This goes to the first point of taking the writing seriously. However, there's a certain level of respect and credibility that can be gained (or lost) with sloppy work. Cleaning up grammar, using proper syntax, and following the expectations of the individual court should be a priority.
What tools are available for writing appellate briefs?
Writing an appellate brief is largely an individual task. An attorney is asked to paint a clear picture of the case for a sitting judge who will, in turn, determine what is credible and what is not. Thankfully, there are a few tools to make this task easier.
- At the very start of any appellate brief project, an attorney needs to find and follow the jurisdiction rules and norms. Firing off a brief in the wrong form can be a disaster for an attorney. Consulting the Federal Rules of Appellate Procedure is a good starting point, as are using the features of legal research platforms. These subscription-based platforms give attorneys access to appellate briefs, as well as intuitive analytic information to help structure an argument.
- It can be helpful to read other appellate briefs, especially successful ones. What did the brief do well? How did it structure its argument? While it's not smart to take a copy-and-paste approach to appellate briefs, figuring out what works and what doesn't – especially reading briefs that went before a specific judge – can serve as a head start against competing attorneys.
- When reading other appellate briefs, focus on key sections like the summary of argument. This is the opportunity to clearly, concisely, and provocatively frame the stakes of the case. From the very first sentence, the summary of judgment should be the primary concern of an attorney.