Briefs are the key to the entire appellate process. They are the most critical factor to influence the success or failure of an appeal. In most cases, they’re more important than oral arguments.
But there are many nuances to writing an excellent appellate brief. An experienced appellate attorney understands what should and should not go in the brief and which tactics to use for each case. Even when an expert writes it, they will make sure there are no errors and reworking it to ensure the brief is well-organized and flows logically.
Here are a few tips to help you draft an excellent appellate brief:
1. Tailor the Brief to the Audience
Appellate judges do not spend as much time going through a case as you or a judge in the lower court would. They are likely to know less about the parties, the case, or its real-life context than you.
It helps if you explain the facts briefly but precisely and present information in an understandable manner. Also, since they have to read multiple briefs, some of which could be extremely lengthy, it helps explain your argument simply and straightforwardly.
The crux of every appellate brief must answer one simple question: what do you want from this case? This answer must be at the front and center of the preliminary statement. Your goal is to make it easy for the appellate court to understand your argument and rule in your favor. Do not waste time with adjectives and unnecessary words.
2. Do Not Use Jargon
Appellate judges may not know much about the industry related to the case. They are unlikely to understand the true meaning of business or technical jargon associated with the case because they are not experts in the field.
When writing a brief, make sure you avoid jargon.Appellate judges or clerks do not like to reread a brief several times to understand the case. A jargon-free and clear brief is more likely to win.
3. Do Not Ignore Facts Even If They Are Not in Your Favor
Appellate lawyers must mention facts that could be in favor of your opponent during the brief. There are several advantages of doing so. You get to gain the court’s credibility by being proactive. Also, this preemptive decision could throw an opponent off balance, and you could put your spin on the argument.
Unless it is necessary or an issue involves factual determination, do not argue facts. Good appellate briefs are about the law, not the points for the case.
Experienced appellate attorneys make it a point to go through the brief several times to edit unnecessary statements and words and keep the draft well-organized and relevant.