Writing an appellate brief is a part of every law school’s training, and students are required to practice writing briefs in the first year of college. Yet, there is a subtle art to writing a successful appellate brief. An ineffective brief could be an important reason for a lost appeal. Our team of top appellate lawyers has written thousands of briefs over the years and knows what it takes to write a good brief.
Trial Attorneys Are Not Necessarily the Best People to Write a Brief
It’s difficult to find a trial lawyer who has the expertise that goes into writing a good appellate brief. They often equate the content with that of a jury speech and address appellate judges as they would address a trial judge or even jurors. Such briefs are usually filled with irrelevant rhetoric that serves no purpose. Some trial lawyers understand the nuances of an appellate brief but fail to present their arguments effectively.
A Good Brief Has Arguments that Are Presented Well
The appellate brief is always framed within the standard of review and contains all the necessary facts and law, providing sufficient background information. It also explains the relief that’s requested. The brief must have a logical flow with an analysis that’s easy to follow without missing any essential points. The relevant law must be mentioned to allow the judges to decide on the raised contentions. It must cite all relevant cases whenever possible. You may also provide attachments to supplement the brief. For example, if you claim that a statute has changed, make sure that a copy of the older statute is attached. Similarly, rules and regulations relevant to the brief must be attached because they help save time.
The Facts Are Presented Briefly but Precisely and Persuasively
Facts must be presented precisely and effectively, giving the law clerks and appellate judges the background and presenting facts they need to understand and analyze. The points must refer to the Record on Appeal because law clerks and appellate judges always refer to the record sites while examining the brief. Experienced appellate attorneys also prefer to catalog and mark exhibits rather than haphazardly presenting them.
Appellate Attorneys Understand the Nuances of Writing Briefs for Different Appellate Courts
Appellate judges in an intermediary court usually restrict themselves to analyzing trial court judgments based on existing laws. They do not generally involve themselves with factfinding. Arguments based on factfinding are best reserved for trial courts. Similarly, arguments related to change of public policy or public law is best left to the Supreme Court. Appellate attorneys preparing a brief for the federal court know that they must refer to the Federal Rules of Appellate Procedure and the local rules of the court when the appeal is being made.
Most importantly, appellate attorneys must follow procedural rules that govern appeals. There are instances where briefs have been rejected because they contained too many lengthy footnotes. Sometimes briefs are dismissed because they’re too long and sometimes because there’s too much material in the brief.
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