The Do’s and Don’ts of Appellate Briefs
By Laura Kamps
Laura Kamps is a law clerk for Justice Margaret Stanton McBride of the Illinois Appellate Court, First District, in Chicago. She can be contacted at lkamps@court.state.il.us.
You prepared as best you could but the trial court or the jury decided against you. Now it’s time to appeal—a daunting task to some new (and many experienced) lawyers. The following tips will guide you in drafting a persuasive appellate brief and help you avoid common pitfalls. It may seem like common sense, but you’d be surprised at how often we forget the simple things.
• Read the appropriate rules for your jurisdiction. The court rules may describe exactly how a brief should be prepared, such as the sections to be included and page limits. Failure to adhere to the proper rules can also signal waiver of points on appeal.
• Include an appendix in your opening brief. The appendix should include a detailed table of contents to the record on appeal as well as any operative documents crucial to the appeal. The authoring judge will appreciate the ease of reading the contract at issue in the appendix, rather than digging through an expansive record.
• Avoid raising every conceivable argument on appeal. Every appellate judge has encountered a brief where counsel has thrown in everything plus the kitchen sink. Such types of briefs only hinder the judge’s ability to focus on the prime issue to be considered. Your time is better spent focusing on the most important issues and developing them fully and completely.
• Don’t make it personal. You may not agree with the trial court or your opposing counsel, but those personal feelings do not belong in your brief. Remember your audience and watch your tone. It’s one thing to disagree; it’s another to criticize.
• Be sure to present a complete statement of facts. You may be tempted to leave out facts that aren’t in your favor, but your opponent won’t forget to include them and as a result you’ll lose credibility in the eyes of the authoring judge.
• Don’t stretch your authority beyond reasonable bounds. Rather, you should cite to a case that advocates your position over a case that states the one sentence you want when the rest of the decision is counter to your argument.
• Define your “terms of art.” While you may focus your practice on specific areas of law and use certain practice-specific terms, most appellate judges consider appeals on many subjects and may not be familiar with your use of the term.
• Don’t forget your standard of review in your analysis. Your analysis should be framed according to that standard, so if the issue is to be reviewed for an abuse of discretion, don’t ignore the trial court’s ruling and assert a de novo review.
• Have another person proofread your brief to catch missed errors. Remember, spellcheck won’t correct a mistaken “form” that should have been a “from.” Similarly, be sure to Shepardize the cases you relied on for support. It will not help you on appeal if you fail to notice that the case you discuss for several pages has been overruled or distinguished.
One final thought: When preparing your brief, remember the appellate clerk, who often is the first person to read and consider your position on appeal and will spend the most time with your case. Ask yourself if your brief makes the task harder or easier for the clerk? You always want to put your best foot forward as a lawyer and drafting a strong appellate brief is no exception.
READY RESOURCES
• Effective Appellate Advocacy. 2004. PC #5310333. Section of Litigation members receive a discounted price. To order online, visit www.ababooks.org.
