Article: Persuasive Appellate Briefs - Plews Shadley Racher & Braun, Indiana

I. Introduction -- The Significance of Persuading the Appellate Court

The brief is unquestionably the appellate advocate's single best opportunity to persuade the court. Appellate courts are driven by paper and issues of law, in contrast to trial courts, which (in the main) are moved by witnesses and factual issues. Oral argument is available in too few cases. The brief is the main chance to define and deal precisely and comprehensively with the issues of the case.

At the same time, appellate courts are exceptionally busy. Most appeals carry with them large, sometimes enormous records that have been amassed over years of unstinting effort. The opportunity for meaningful review of the details of that record is almost non-existent. Therefore the need for help from advocates in identifying and addressing the essential points is even more significant than in the busiest trial court.

When one surveys appellate opinions on a particular issue over a number of years one can often see how well advocates have done their briefing. It is true that appellate judges sometimes differ on important points in the law's development. But more often, I believe, when the law's development seems to flounder a bit, or to reach inconsistent results, the cause may lie in the briefs. Were all the issues addressed? Was controlling or informative precedent presented? Were all and only the applicable legal theories assessed?

In the end, we all suffer if bad briefs make our law. Good appellate brief-writing is more than a pinnacle of the lawyer's craft, although it is surely that. How well we present our written arguments at this most refined level of legal conversation defines our culture as well as our profession.

II. The Mechanics of a Persuasive Brief

A. Strict adherence to the appellate rules of procedure.

Both Indiana's appellate courts and the Seventh Circuit have been kind enough to set forth very specific and sensible rules governing the form details of appellate briefs. See Indiana Rules of Appellate Procedures 8.1, 8.2, 8.3, 8.4, and 9; Federal Rules of Appellate Procedure 28, 29, 30, 31 and 32. Please note as well that the Seventh Circuit has its own additional requirements for briefs filed in that court.

It is vital that the advocate strictly observe these rules. I will not repeat all the details of these rules here, in part because it is my view that a good advocate should reread and rethink these rules as a part of the preparation of every appellate brief, and I would not want to create a checklist substitute for that necessary process.

These rules are all designed to allow the court to do its job effectively and efficiently. They are the product of our best judges' careful consideration of how they want things done before them. Their rules are based on experience much more vast than that of even the most experienced appellate advocate. I cannot imagine presuming to know better what an appellate judge needs, but I have seen other lawyers make that presumption in presenting briefs not consistent with the rules.

Judges assess the calibre of a lawyer and the lawyer's case constantly, by every single thing the lawyer does. If the lawyer files a sloppy brief, without careful attention to the details of brief production or form, the judges may draw two conclusions:

1. The lawyer does not respect the court enough to learn or follow its rules; or

2. The lawyer is too young, too inexperienced, or too incompetent for the court to rely upon.

Neither conclusion bodes well for the lawyer or the client.

In my practice I have found several sources of information to be invaluable in addressing form and other procedural questions. On state appeals, I recommend Stroud, 4A Indiana Rules of Appellate Procedure (1990, 2nd ed.). On appeals in the Seventh Circuit, the Seventh Circuit's Handbook for Practitioners, which can be obtained from the Clerk's office, is invaluable. Finally -- and so as to not wear out your welcome, I would use this resource only after scouring the written material I have identified -- I always have found the Indiana Court of Appeals and Supreme Court Administrators to be very helpful. The Clerk's office of the Seventh Circuit also tries hard to be as helpful as possible to practitioners.

B. When is your brief due?

This is one question that the appellate advocate had better answer quickly and accurately, and with a fresh look at the rules in each case. In general terms, in Indiana state courts the appellant's brief is due 30 days after the appellant has filed the record. The appellee has 30 days to file the appellee's brief, and the appellant has 15 days after that filing to file a reply. Ind. App. R. 8.1. Under the federal rules the appellant's opening brief is due 40 days after the record is filed, with the appellee's brief due 30 days later and the appellant's reply due 14 days after the appellee's reply is filed. Fed. App. R. 31.

But these are just the general rules, subject to a myriad of modifications and qualifications. Interlocutory appeals have a shorter timetable. E.g., Ind. App. Rule 8.1(B). Timely filed initial motions for extension of time to file briefs are nearly always granted, although expressly disfavored under the federal rule.^[1] Be sure you accurately count your additional days (or lack thereof) for service by mail.

The consequences of untimely filing are extreme. Failure by the appellant to timely file subjects the appeal to dismissal. Ind. App. R. 8.1(C), Fed. App. R. 31(c). If the appellee is late, on the state level the brief is treated as "received" rather than "filed," which means the court may choose not to consider it. The consequences are the same for a late reply brief by an appellant. Ind. App. R. 8.1(C). If a federal appellee fails to timely file, the consequences are less clear, although if the appellee fails to file any brief he may not be heard at oral argument except by permission. Fed. App. R. 31(c).

C. Highlights of the form and content rules, and how they can impact an appeal.

While I won't repeat the minute details as to the form and required general contents of a brief found in both the federal and state appellate rules, there are a number of specific points (in addition to the general advice of "FOLLOW THESE RULES TO THE LETTER!") which warrant comment.

1. Page limits.

In both state and federal appellate courts, principal briefs are limited to 50 pages. Ind. App. R. 8.2(A)(4); Fed. App. R. 28(g). The federal rule limits reply briefs to 25 pages; Indiana has no set limit. Id.

Fifty pages, especially with footnotes, is a lot of information. While there is a great temptation for advocates to exceed these limits in order to fully dress the glories of the client's case, I cannot recall a single case in which having 25 more pages -- although both courts are good about granting extra pages -- made a material difference in the quality of the arguments the parties were able to raise.

This is one area in which I think rethinking of our appellate procedures may be in order. Why not convert the briefing schedule to focus the arguments more sharply? One such possibility would limit opening briefs to 25 pages and then give each side 20 more pages to focus on issues identified by the court as key or troubling after review of the initial briefs, either after or even without oral argument. This could save everyone involved a lot of pages.

2. The required contents of appellate briefs.

Both federal and state appellate rules specify the required contents of a brief. Ind. App R. 8.3; Fed. App. R. 28(a) and (b). These lay out the bones of the brief. Each requires a table of contents, table of authorities, statement of the issues, statement of the case, statement of facts, summary of argument, an argument, and a conclusion. These are the same categories we have been working with since our first legal writing class in law school. They are the basic elements of any effective brief in any court.

Federal appeals require a few additional items. For example, appellants must include a statement of jurisdiction (this is only required in Indiana on direct appeal to the Supreme Court). The appellee must state expressly if he agrees or disagrees with the appellant's statement of the case, statement of the issues, statement of jurisdiction, or statement of the standard of review. If you omit any of these, the Clerk's office often will return your brief to you as not conforming with the Rules. You generally can "repair" the brief when it is returned this way, but it is more fun to avoid this correspondence.

Each of the required elements should be tackled as an opportunity, not a problem.

or example, the statement of the issues is your chance to crystalize the case into 2 or 3 sentences, to structure the court's thinking. It can become "the case about what standard of review is to be applied by administrative law judges reviewing agency actions." The selection of perspective can be critical.

The statement of the case in both systems is designed to "indicate briefly the nature of the case, the course of proceedings relevant to the issues presented for review, and its disposition in the court below." Ind. App. R. 8.3 (A)(4). See also, Fed. App. R. 28 (a)(4). In Indiana, the appellant also must include "a verbatim statement of the judgment." Ind. App. R. 8.3(A)(4). If the judgment is not included, summary affirmance is authorized, although it is not mandatory. Terpstra v. Terpstra (1992), Ind. App., 588 N.E.2d 592, 594, n.1. The statement of the case should not be inert. It needs to be both fair and persuasive.

The statement of facts, carefully crafted so it both tells a story (I recommend subheadings here, i.e. "x purchases widget factory," then "x discovers widget factory is contaminated" to break up the drone of facts and record citations and to give the reader guideposts) and presents the essential facts you need to prevail, is another precious chance. Don't recycle the statement used in the motion for summary judgment below. Break the case down again and give the appellate judges enough facts so they understand the broad setting as well as the essential details of the case. This is especially important in newer or special areas of law, where the court may not be familiar with the statutory, regulatory or commercial background. For example, in a typical environmental case the trial court, over the course of several years, will have had an opportunity to become familiar with how environmental permits are issued, but the entire structure of shared state and federal authority may be entirely foreign to an appellate court. Advocates need to explain that background, with no frills but with substance.

The summary of argument in many briefs is a mere repeat of the table of contents headings. It should be what you would want to say to the court if you only had a page or two. It should contain the essential core of your claim, the precise catalogue of the reasons your client should prevail. By rule, no citation of authority is allowed, although I confess that if a case controls here, I cite it as a truly controlling precedent. That is one way to make your case about the scope of that controlling case.

After these required sections, an argument follows. This is the bulk, the muscle, of the brief. It must move the court by demonstrating just why the appeal should be decided in your favor.

The Indiana rules describe the argument as follows:

Each error that appellant intends to raise on appeal shall be set forth specifically and followed by the argument applicable thereto. If substantially the same question is raised by two or more errors alleged, they may be grouped and supported by one argument. The argument shall contain the contentions of the appellant with respect to the issues presented, the reasons in support of the contentions along with citations to the authorities, statutes, and parts of the record relied upon, and a clear showing of how the issues and contentions in support thereof relate to the particular facts of the case under review.

When error is predicated on the giving or refusing of any instruction, the instruction shall be set out verbatim in the argument section of the brief with the verbatim objections, if any, made thereto.

Ind. App. R. 8.3(A)(7).

The federal rules have a similarly precise description:

The argument must contain the contentions of the appellant on the issues presented, and the reasons therefor, with citations to the authorities, statutes, and parts of the record relied on. The argument must also include for each issue a concise statement of the applicable standard of review; this statement may appear in the discussion of each issue or under a separate heading placed before the discussion of the issues.

Fed. App. R. 28(a)(6).

These rules are clear. Each argument must be made^[2] and supported with citation to the applicable facts and law.^[3] Below, I will discuss in more detail the craft of that effort, but the core requirement is plain. Please note the federal rule's express requirement of a statement of the standard of review to be applied to each contention. While there is no such express requirement in the Indiana rule, no competent appellate advocate should fail to set out, early and as often as necessary, the appropriate standard of review.

The conclusion is perhaps the most misunderstood required section. In both systems it is to be "[a] short conclusion stating the precise relief sought". Ind. App. R. 8.3(A)(8); Fed. App. R. 28(a)(7). It is "short" -- but this does not mean it should consist of "For all the foregoing reasons" plus your request for relief. Why even say that? Instead, the advocate should state, in short, powerful terms, why your client should prevail. It should be used to connect the dominant themes -- sound public policy and precedent, for example -- that have been articulated in the brief.

If your brief has worked well, it should lead the court in this manner. The statement of issues should entice the court, focus it on a "tag line" for the case. The statements of the case and of the facts give the procedural and substantive essentials of the action in an indisputably accurate -- appellate courts do not ever want to resolve factual disputes -- fashion. The summary of argument gives an overview of why the issues come out in your favor. The argument puts the muscle on the bones, gives the court the decisive details of the cases and law that show you should win. The conclusion concisely summarizes what has been shown, and states why your client should win. It echoes, but does not repeat, the summary and the argument.

The conclusion also states, with exactitude, just what relief should be granted. A ringing conclusion with no identification of the relief that is warranted is annoying. Just say what you want, and make sure it is just what your client wants, and something that the court can realistically do.

D. Miscellaneous additional form or content items.

1. Appendices.

The Seventh Circuit requires the appellant to file an appendix containing the judgment under review as well as any court findings or memoranda or even any oral statement issued upon rendering the judgment. Cir. R. 30(a). The rule specifies certain additional items that must be included and allows the appellant to supply any other "short excerpts" from the record "that are important to a consideration of the issues raised on an appeal." Cir. R. 30(b). The appellant may file a reply supplemental appendix. Cir. R. 30(d).

Indiana practice also permits the filing of an appendix, with few restrictions on the contents. Ind. App. R. 8.2 (A)(4). Especially important record portions and key cases (particularly newer decisions from other jurisdictions) are frequently presented in appendices.

2. Citation form.

Indiana has a prescribed form of case citation. Ind. App. R. 8.2(B)(1). It is not the same as the "Bluebook" form. Only a fool would ignore that rule. Using some other form only connotes either disrespect or incompetence, or both. Similarly, helpful and descriptive references to the record are required. Ind. App. R. 8.2(B)(4).

3. Supplemental authorities and amendment of a brief.

Both court systems allow filing of supplemental authority after filing of the briefs, without argument but with reference to the argument in the brief already filed which the authority supports. Ind. App. R. 8.4(B); Fed. App. R. 28(j). Indiana allows amendment of a brief for good cause upon verified application. Ind. App. R. 8.3(F). Amendment is much less common in the federal system; I could locate no specific rule authorization.

III. Characteristics of a Persuasive Appellate Brief

In this section, I offer observations on characteristics of writing style and argument that I believe make a persuasive appellate brief.

A. It is written correctly.

Here again, the demonstration of competence is important to the persuasiveness of the product. Proofread the brief, and then proofread it again. Don't rely on "spellcheck" or similar hideous "programs". They don't catch the wrong word if it's spelled correctly. Have a good proofreader completely outside of the case read your brief. Did they find any errors? Did they understand your arguments?

B. It is lean and written well.

Style adds to the power of a flawless brief. Here are a few elements of style I have found to be effective.

1. No adverbs. If it is "obviously," "clearly," "evidently," or "plainly" so, just say what it is, don't judge it. That is what courts do.

2. The best arguments are staccato layers. They are concise, to the point explosions in the center of the adversary's heart. One after another, the reasons compelling a decision in favor of your client are laid out. And "even if" the first reason were not cause enough for judgment, the next reason, the next layer, is itself an independently sufficient basis for a decision in your client's favor. Not all cases fit this diagram. Sometimes one argument, one case, one sentence (I hope to have a case like that some day) is enough, or all you have. The essential task is to always come back to what can help the court decide the case in a fair way that dispenses justice without bloodshed, which is the central social role of courts (and lawyers).

3. Case citations are crucial. Appellate courts generally are extremely attentive to the crucial cases. The key is connecting the court with the cases that count. That is why I usually try to highlight two or three decisions that best embrace my key points, and hope I can induce the court to look hard at those decisions. That is the kind of help I would want if I were a judge.

String cites are useless, unless the point is to show a pattern of support for your argument across the country. But even that kind of cite nearly always should be accompanied by parenthetical statements concisely stating the relevant facts and holding of the court.

I will go to my reward wondering why any lawyer would cite a case without a pinpoint page cite to help the judge locate the section you want her or him to read. The absence of such citations sends the court this message: "I am too busy/lazy/unsure to tell you just where to find the point at issue. Maybe I did not even read this case! In any event, it was too much trouble to search the case for the relevant page."

4. Revision is the key to the difference between a B+ and an A brief. The most useful revision is one which lingers over each sentence and judges it by the following criteria:

(2) Does this sentence really help my case, and does it connect with the sentences preceding and following in a logical, persuasive way?

(3) Does it have power, and have I cleansed it of hackneyed, trite, pejorative or other distracting elements?

(4) After (1)-(3) have been satisfied, can my cause thrive without it, is it crucial to my argument? Would it be telling to me if I were the judge and could not linger too long on this matter?

Writing a brief is like packing for a trip. You struggle for a balance between taking what you need and being properly prepared, and lugging along useless things that only weigh you down and wear everybody out.

5. Good arguments address the tough points the court must decide. That doesn't mean you need to anticipate and blunt your opponent's every claim. Save much of your reply for the reply brief.^[4] But it is folly not to help the court where it may have doubt and to try to show why that doubt should be resolved your way.

6. Vitriol poisons a brief. Every judge I have talked to in Indiana has told me that nothing distracts from an argument or a brief more than personal attacks or inappropriate negative criticisms. It goes against the central task of courts, to resolve conflict without a breach of the peace. Such attacks threaten the peace, and we have seen in some courts (not, thank Heaven, in Indiana) what can happen when courts no longer keep the peace. The appellate courts can act to remove vitriol. See, Clark v. Clark (1991), Ind. App., 578 N.E.2d 747, 748 (Court of Appeals can strike brief where intemperate or vituperative language is used against trial or appellate court or opposing counsel).

7. Connect the law with principle and policy. Show the court how the result you are seeking both makes sense, in general and in your particular setting, and is fair. This can be a most useful section of a brief, because it is so helpful to provide an appealing moral and policy foundation for the result you want. Oftentimes well-established rules of laws become bloodless in their dominance, and need some color restored to their features.

8. Use words sparingly, but try to make impact with your words -- and have a little fun. One of the most memorable lines I have ever read in a brief was borrowed and humorous. After recounting the essentials of a complex jurisdictional battle over whether a default judgement based upon one party's refusal to participate in an arbitration in another state should be sustained, my adversary used a line from Oliver & Hardy: "It's a fine mess you've gotten us into now, Ollie." I am sure that was the tag line the court used on that case throughout its otherwise undistinguished life, and we all appreciated the humanity.

Good briefs are made by hard work. The effort must include painstaking attention to the formal requirements of the appellate rules and comprehensive attention to the substantive legal and factual issues at the core of the case. All of this must be presented in a compact, lyrical style that is engaging but not superficial. Such gracefulness can only be approached by most of us only after five or more revisions.

^[1]But note Ind. App. R. 14(A), which precludes extensions of time for briefs in support of a petition for transfer or rehearing.

^[2]Along these lines it is interesting to note that Indiana's appellate courts have no jurisdiction to consider claims made for the first time in an appellant's reply brief. Matter of Adoption of H.M.G. (1993), Ind. App., 606 N.E.2d 874, n. 1.

^[3]Unless an appellant is making a good faith argument to overturn existing law or to make new law, if no authority is cited in support of an argument, the argument will be deemed waived. See Stroud, supra, at § 7.2, and cases cited.

^[4]Indiana state court appellees should note the capacity and necessity (or else the appeal will be waived) to cross-appeal through the appellee's brief and the capacity to file a reply brief in support of the cross-appeal issues after appellant's reply brief. Ind. App. R. 8.3(C).