Episode 157: Best Of The Portia Project: Judges’ Top Tips On Briefwriting
Explore the collective wisdom shared by esteemed judicial experts
00:25:20
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Show Notes
Many of the judicial guests on the podcast have shared their top tips for briefwriting. This episode compiles many of these tips for those who want to learn. Whether you are preparing for your first appellate argument or seeking to refine your existing skills, this episode offers a treasure trove of practical advice to elevate your brief-writing prowess and become a more effective advocate in the courtroom. Tune in to explore the collective wisdom shared by esteemed judicial experts and bolster your abilities in the realm of appellate advocacy.
Transcript
Former Chief Justice of the Utah Supreme Court, Christine Durham
I have a lot of preferences and a few pet peeves. One of the things I care a lot about is the clarity, brevity, and usefulness of writing. That's the first thing we see about the cases. What's in the briefs? What has been selected to be referenced in the record? That should give an appellate judge an outline of what you're talking about, first of all, what you need from the court, why you deserve to get it from the court, and finally, how the court can give you what you need in the way of a result.
All of those are important because a lot of people get so engaged in the theory or the factual background of their case that they forget to narrow it down and say, "Here's what the court needs to do. Here's why you can and should do it. Here's how you should do it to enable us to go forward." That's a model that I still try to use as I'm working on appellate advocacy from the other side.
Chief Justice of the West Virginia Supreme Court, Beth Walker
I always encourage lawyers to write to your audience. It’s when you're changing the case from a case in front of a trial court to a case in front of a panel of five. I'm not talking about writing to Beth Walker or any of my colleagues but writing to appellate judges is different. I know from having practiced that the first thing you do is get your summary judgment brief out and say, "I'll turn this into the appellate brief." The law is going to be the law. You're going to use a lot of that but I challenge lawyers to think differently about that appellate brief. That was the summary judgment you wrote for the trial judge. How is that going to be different in front of an appellate court?
With the possible exception of criminal cases where lawyers need to bring all of the arguments forward, I encourage lawyers to pick and choose their arguments and not to feel like they have to bring ten assignments of error in a civil case. It's dizzying. It's difficult for anyone to sift through all that. There are exceptions to this rule, criminal cases, and habeas cases where lawyers have a responsibility to bring everything forward. I understand and appreciate that but it's not always necessary. Some of the best appellate advocates pick and choose not just in the oral argument but also in the brief.
California Court of Appeal Justice (retired), Margaret Grignon
There are two things you have to do in a brief in addition to writing well in a clear and organized fashion. First of all, you have to make the justices want to rule in your favor. I call that winning the hearts and minds of the justices. You need to present your case in a way that makes them think that your side should win. Especially if the law is not 100% on your side or you're in a new area, you have to give them a legitimate path to get there. It has to accomplish those two things. 1) They want to rule in your favor. 2) They don't have to go outside of the legal realm to rule in your favor.
It's important to give them a legal path that they will feel comfortable with and that they can get the result that you want them to get. I always talk about you need to have a path for this. You want to keep your justices on that path and not over here. That's why it's important for your brief to be organized with no extraneous issues and things that might allow them to go off the path.
Arkansas Supreme Court Justice, Rhonda Wood
The number one tip I have is to be more specific about the relief they want. I find that especially appellants, their whole focus is, "The trial court errored." They're telling me every reason the trial court errored. They always are like, "You need to reverse." It's like, "I got that you're making that point but do you want to reverse and dismiss, reverse and remand?" It’s hearing reverse and remand with instructions to enter an order that says what. They don't go that last step. It's like, "Take it home."
Even in an oral argument, I'll sometimes say, "If I buy your argument, what exactly do you want this court to do?" Is there some middle ground that you can offer as an appellant as a backup that could still get you a good result? It may not be a complete reverse and dismiss but you'd be okay with a remand too because it still gets your client back in the door for a second, bite at the apple. Don't be afraid to not go all in but to say, "This is our preferred remedy but if the court doesn't get there, this would be acceptable too." Do not focus on the error but focus on the remedy.
Ohio Court of Appeal Justice, Christine Mayle
I am a big proponent of parentheticals. If you're going to cite a case for a particular proposition and there's no parenthetical, I'm going to assume that there's no logical leap that I need to take to get from what is in that statement in the sentence to what the case then says. When I go and read the case and I see it's not what it's led me to think that it says based on the brief, that's not good.
If you have a parenthetical that explains why you're citing this case for that proposition, that's fine. It gets hard when you have a bunch of cases. You don't have parentheticals that explain why you're citing that case. There are cases that aren't cited that should be cited. The biggest thing that I would ask is to be honest with the facts in the law.
Be completely honest with the facts and the law.
California Court of Appeal Justice, Judith Ashmann-Gerst
The brief has to be accurate. That's important because we check. As an appellate lawyer, you know we check every citation that's in a brief, every single one, whether it's to the record or a case. If you think you're going to get something from us, you're dead wrong. We had lawyers try to do that. Accuracy is important. Focus on the important things and there are two important issues.
1) What's the standard of review? You have to know what the standard of review is, be able to articulate it in your brief, and argue against that standard of review. If our standard of review is substantial evidence, that's difficult. You have to say where in the trial court the evidence doesn't support the particular finding. The standard of review is significant and so is prejudice. I can't even tell you how many cases we get from good law firms that don't focus on prejudice. It's not enough that there's an error. It has to be a prejudicial error. Those are the two important things to focus on in briefwriting.
It's important also to make it easy to read. Our eyes are older. Generally, justices are older. There are some young people. By and large, justices are older and our eyes get tired more easily. Make it easier to read. A good brief is set up with headings, paragraphs, and spacing. Some of the justices are working off computers. I don't know how you do that with a 60-page or 70-page brief but many of us still print out or get written briefs. That's what I do. I'm making notes in the briefs. It makes it easy for me to make notes. Most of my colleagues do the same thing.
Make it look good. My first boss at the attorney general's office used to say, "Anything that you're preparing, wrap it up in a red ribbon," meaning make it look nice. It helps. Not that we're going to hold it against a client if it doesn't look great. It's just making it easier for me. There are certain sections that you have to have in a brief done in a certain way. You have to follow the rules.
United States District Judge, Lee Rosenthal
The most important thing you do first as a lawyer is to write well, clearly, in short, declarative sentences, with no passive voice, no $15 words, a nickel word will do, read Bryan Garner's 100 top tips for good writing, and put them under your pillow at night. Do that. Don't say shall. It's unclear. Be above all clear and get to the point. For judges with busy dockets who are triaging every day, remember, their law clerks are going to be reading it. Start with your biggest points first and hit hardest and short.
Make it so that the judge understands what it is you want and why it matters. Many lawyers write briefs that have so many points in them that you don't know what matters. Why do I care? You have to tell me you care and why. I understand why this is important and precisely what it is you want. That's not held by a general order in stilted language with a bunch of whereby and whereas that says granted. I need to understand what it is you want me to do and why. That's the first thing. Written well, second thing.
California Court of Appeal Justice, Adrienne Grover
Pro tips for briefwriting. Take the time to write a shorter brief. There is that famous quote that's been attributed to a number of justices. I don't know whose it was but it was, "If I'd had more time, I'd have written a shorter opinion or a shorter fill-in-the-blank." Take that time. Write what you need to write but then do take the extra day to go through it and try to tighten it so that you're being succinct.
Write what you need to write, but then do take the extra day to go through it and try to tighten it so that you're being succinct.
That's a good one. I agree with that. Sometimes people will see the final product of a brief and say, "That looks very simple. I could do that." You think to yourself, "Only after 15 or 20 drafts, this and that, it should look simple and obvious. It should track, follow, and all of that." It isn't simple. It takes time to do that.
In my view, longer is not better. That's not to say that we don't give adequate time to digest a lengthy brief. Sometimes it has to be long. Sometimes when it doesn't have to be that long and it is, it doesn't affect the outcome but it makes my life easier if it's a succinct, tight, lively, well-written, and crisp brief. The other tip for appellate briefs that I will offer is to pay attention to your headings and subheadings with an eye toward what your ultimate table of contents is going to look like.
There's the insider view that if I pick up a set of briefs or read them on the line, and I want a quick introduction to what is this case about, I will often go to the tables of contents first and read. "How does the argument read? What is this case about?" Anymore the preparation of a table of contents is sometimes a task that either is done automatically by software or given to a paralegal. When crafting the headings, if you do it with an eye towards stringing them together so that you can look at a 1 or 2-page table of contents and get the idea of the case, it's helpful for me and any other justice who looks to that, the first taste of what the case is about.
California Court of Appeal Justice, Lee Smalley Edmon
In the briefwriting, first of all, as you know, that's so important in the court of appeal. The way we operate, we typically have a draft opinion going in. That first impression that you've made with the brief is going to be incredibly significant in the way the case comes out. Just a few tips. Being brief in your briefwriting is always a good idea. As a presiding justice, I get all the motions before the case is heard. Many motions come in asking for expanded words. "Give us more space." It's hard to cut down a brief but it's very valuable to do that. By cutting it down and taking the time it takes to focus your argument, it becomes a much more powerful tool at the end of the day.
Being succinct and brief is a good idea. Being very focused on letting us know right out of the gate what it is that you want the court to do is important. Sometimes it's pretty unclear exactly what the brief writer wants us to do and it's very helpful if it comes right out of the box and advises the justice on what they want. I start with the table of contents to figure out what is this case going to be about. Reading through that, if it can tell a story, is very helpful. Those are a few thoughts that I have about briefs but I can't overstate the importance of the briefs, particularly in light of the way that we approach the cases.
Michigan Supreme Court Justice, Megan Cavanagh
What's important, especially in appellate writing, is to tell a story. That's not always the factual story necessarily. Depending upon your issue, it may be the procedural story. It may be how we got here or what the process was so that you could see what process was lacking. Whatever your issues, you have to figure out what story you need to tell for the legal issues that you're raising or the relief that you're seeking. It is very logical and deductive reasoning. Not a lot of flourishes but that doesn't mean that you can't still tell a compelling story to lead your reader to their conclusion.
Storytelling is important in appellate briefwriting in particular. Another story you mentioned is the different parts of the record but another story, especially at the Supreme Court level, is the story of the law, the development of the law, where it should go next, what is the natural evolution of it, and telling the larger background story of, "How did this law start? Where is it going? Where should it go?" That's another layer to it.
Storytelling is important in appellate briefwriting.
It's all from the lens of what point it is or where you're trying to lead, either if it's a single judge or a seven-judge panel on the Supreme Court. If it's a particular result in your case or our court, usually, we're looking at the bigger picture. Not just the application in this case but in the next 100 cases, you have to figure out what that story is but a lot of time, it is the progression of the law like, "This is why it started and expanded over here but then it got brought back." To have that inform what you are advancing as what is either the state of the law and why it is, why it should be restricted, or why we should agree with your expansion of it. The job of good appellate lawyers is to figure out where you push the envelope a little bit here or there.
A lot of the advice, especially in appellate writing and writing the facts, refers to the standard of review a lot. Make sure you write the facts in accordance with the standard of review. Your point is adjacent to that but is equally important. Write the facts with a view toward the legal arguments that you're planning to raise. If there are a lot of procedural things that are relevant and that's going to be one of your issues, then that would be the parts of the record you would highlight. That's storytelling too.
I would frequently write my legal argument before I would write my facts even though it comes first in your brief outline so that I knew what story I wanted to tell with your facts. We read hundreds of thousands of briefs all the time. There are some excellent ones and some that are less than that. Maybe this is just being an appellate lawyer that I geek about that but there's nothing better. You’re right there with them. You're following along the story and you're like, "I get the argument that you're making, how you led me here, and why you think about that." It can be a very effective tool if you know where you want to go and then back up and help you get there.
There's a seamlessness to briefs like that that have an overarching plan and goal. You can see it throughout the whole brief. When you get to the legal argument, you're like, "This is the natural evolution of what I read. This is what they're arguing." Sometimes you get there and it's a little bit jarring like, "Why did I get focused on this other part of the record when it isn't relevant to the particular issues being raised?"
Not every issue lends itself to some great story of the process. Some issues, even in our court, sometimes are fairly straightforward and simple. If you know that issue too in your best and most persuasive argument, it's direct and right to the point. Here's where this goes.
I'm curious. Having been an appellate practitioner and being on the bench with your process in decision-making and opinion writing, are there things that you would say, "In retrospect, if I were still writing briefs as an advocate, I would change this or do something different, or I didn't know how important X was in a brief to help the court?"
I always had it or understood to an extent that I have a greater appreciation for clarity, brevity, and getting there. Also, using fewer words and much more plain language and direct, which is not saying to make it simple. It's harder to write less. It takes more time sometimes to write less. I saw a quote from one of my daughters in her English class. It says, "You're not done when you have nothing more to say. You are done writing when you have nothing left to take out," which I thought was fascinating. I always think of it that way. "Is there something more I could take out?"
You're not done when you have nothing more to say, you are done writing when you have nothing left to take out.
That certainly wasn't my focus when I was writing. That part of that is the perspective of you have this appellate attorney, especially when you get your case up to something like the Supreme Court or the court of appeals in our state. You're so focused on this one case and not recognizing that your audience has volumes to read. More words don't make it more engaging or memorable necessarily. A clearer and more succinct brief is probably better.
Arizona Supreme Court Justice, Ann Scott Timmer
In briefwriting, be concise. We have so much to read. The quicker you can make your point clearly and quickly, the better. Be scrupulously honest about the record. I'm always amazed when I read briefs and track down, "Where is this?" Even if you look at the citation given, they didn't say that at all. I'm all for, "You can embellish a bit but you can't misrepresent." It's surprising how many do. I always think, "Are you trying to lie? Are you in your mind?" I have to think that the latter is thinking, "I remember it that way. That's how it came across." Make sure it says what you think it says when you cite something.
For both briefwriting and oral argument, you need to be prepared to address your weakest points.
For both briefwriting and oral argument, you need to be prepared to address your weakest points. The best litigants are the ones that know, "The reason we're here, especially at the Supreme Court that we took it, is because it's a close call, a gray area, or there's something up." There's another side to your side. You need to be able to identify what that is and be ready to explain to the justices, "This is why they're wrong. This is why it doesn't apply. This is how I can assuage your concern." The best appellate advocates do that. They're ready. They use oral arguments. They want to maybe lead when they're strong but they're ready to dive into the weak as well and turn it around. The ones who aren't as strong of an advocate pretend that there is no weak side.