Brief Writing Tips From Judicial Guests of The Portia Project Podcast

As creator and host of the award-winning Portia Project podcast, which chronicles the storied careers of women judges, lawyers, and leaders from throughout the United States, I have interviewed nearly 100 judges about their careers—and about what kind of advocacy they find effective and helpful in their decisionmaking process. 

Compiled here are seven tips for brief writing gathered from those podcast interviews. While most of these tips are from appellate justices, they apply equally to effective advocacy in the trial court as well.

Know your audience. 

This means recognizing which court you are in, and what power and role that court has. A trial court will view an issue differently than an appellate court, and a supreme court (which has policymaking authority and the power to overrule case law) will see its role differently than an intermediate appellate court. 

Elizabeth Walker, Chief Justice of West Virginia’s highest court, advises adjusting your presentation for the court you are in. “I always encourage lawyers to write to their audience. … Writing to an appellate judge is different” than writing to a trial judge. On appeal, she says, it is helpful to engage in careful issue selection. “Some of the best appellate advocates pick and choose [which legal arguments to raise] not just in the oral argument but also in the brief,” she said. 

Retired California Court of Appeal Justice Margaret Grignon describes another reason for carefully selecting issues on appeal: “You want to keep your justices [on the legal path to victory you have proposed]. That’s why it’s important for your brief to be organized with no extraneous issues … that might allow them to go off the path.” 

Tell a story. 

“It’s important, especially in appellate writing, to tell a story,” says Michigan Supreme Court Justice Megan Cavanagh. She explains: “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 [the court] can see what process was lacking. Whatever your issue, you have to figure out what the story is that you need to tell for the legal issues that you are raising or the relief that you’re seeking.”  

Make the judge want to rule in your client’s favor. And then provide the legal analysis that will allow the judge to do so.

Former California Court of Appeal Justice Grignon boils a persuasive brief down to two things: “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. … Two, … give them a legal path that they will feel comfortable with that they can get to the result that you want them to get to.”

Treat the table of contents as the first opportunity to tell your story. 

The story begins with the table of contents. Many judges on the podcast mentioned that they read the table of contents of each brief first, before diving into the substance of the briefs. The headings in the table of contents should lay out the contours of your story, and provide signposts for the judicial reader so she can drop into the appropriate section she may be most interested in during a first reading of the brief. 

California Court of Appeal Justice Adrienne Grover puts it this way: “When crafting the headings, if you do it with an eye toward stringing them together so that [the court] can look at a one- or two-page table of contents and get the idea of the case, it’s helpful for me and any other justice … [to get] the first taste of what the case is about.” Second District, Division Three Presiding Justice Lee Smalley Edmon, too, says that she often starts “with the table of contents to figure out what [a] case is going to be about, and … if it can tell a story [that] is very helpful.”

Be accurate. 

Accuracy in both record and case law citations is essential. California Court of Appeal Justice Judith Ashmann-Gerst says a brief must be accurate. “[W]e look at every citation in a brief, every single one, whether it’s to the record or a case,” she said. Being straightforward in your citations also builds credibility. As former appellate lawyer, now Ohio appellate Judge Christine Mayle, explains: “When I go and read a case, and I see that it’s not what [the brief] has led me to believe, that’s not good. … The biggest thing that I would ask would be to be completely honest with the facts and law.” 

Clarity and brevity are key. 

Conciseness matters to both trial and appellate judges. Justice Edmon says “being brief in your brief writing is always a good idea,” and it has the added benefit of requiring you “to focus your arguments.” U.S. District Judge Lee Rosenthal of the Southern District of Texas agrees: “The most important thing to do first as a lawyer is write clear, short declarative sentences, no passive voice, no $15 words where a nickel word will do,” she says. “Be above all clear. Get to the point for judges with busy dockets who are triaging every day.” This applies to supreme courts too. As Arizona Supreme Court Vice Chief Justice Ann Scott Timmer notes: “be concise because we have so much to read. The quicker you can make your point clearly, the better.”

Ask for what you want. And be clear about what that is.

If you are the appellant, you want the court to reverse. But how do you want the court to do that? As the former Chief Justice of the Utah Supreme Court Christine Durham put it: “[A]lot of people get engaged in the theory or the factual background of their case [and] they forget to narrow it down and say, ‘Here’s what the court needs to do. Here’s how and why you can and should do it. And here’s why you should do it.’” 

Or, as Arkansas Supreme Court Justice Rhonda Wood explains: “The number one tip I have is to be more specific in the relief [you] want…. If I buy your argument, what exactly do you want the court to do? … Reverse and remand for a hearing? Reverse and remand with instructions to enter an order that says what?”

Asking for what you want, and doing so clearly, is important in the trial court too. Judge Michelle Williams Court, the supervising judge of the civil court in Los Angeles Superior Court, noted if you want her to rule in your favor on a motion, tell her what you would like the court to do (i.e., the remedy you want the court to order), and cite authority demonstrating that the court has the power to do what you are asking.

Ask for what you want—using some of the tips laid out here—and you may just be more likely to get it.

You can read the companion article, “5 Oral Argument Tips From Judicial Guests of The Portia Project Podcast,” by clicking here.

M.C. Sungaila is a partner at the Complex Appellate Litigation Group who has briefed or argued more than 175 appeals, and the creator and host of the award-winning Portia Project Podcast. More tips on brief writing can be found in a special podcast episode that will air this month.

This article originally appeared in AmLaw Litigation Daily on December 12, 2023.

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