Appellate Practice & Procedure

Class #4:

Handling an Appeal—Preparing Briefs

(Part I)

presented by

D. Todd Smithhttp://texasappellatelawblog.com

for

Solo Practice University™

Introduction

Most appeals are won or lost on the briefing (aside from

merits)

Purpose of brief is to persuade the court that your client

should win

Focus today on basic strategies and appellant’s brief

The Basics

Legal writing ability is essential

Briefs should be brief; rarely approach page limits

Write for the justices, not yourself or your client

Use proper cite form

Go for helpful over adversarial

The Basics (cont’d)

Don’t assume the justices know the law, but don’t talk

down to them, either

Favor party names over “alphabet soup” and “Appellant”

or “Appellee”

Edit, edit, edit!

If you can, put the brief down for a few days, then edit

some more

The Basics (cont’d)

Have someone else proofread and cite-check

Have the brief copied and bound

As always, know and follow your jurisdiction’s rules,

and be mindful of local practices

Appellant’s Brief

Issue Selection

Limit to 2 or 3 issues or points of error if possible

More than 3 puts lawyer’s credibility at risk

Simple statements/questions v. “deep issues”—largely a

matter of preference or what court rules require

But avoid generic issues like “Did the trial court err by

granting summary judgment for the defendant?”

Effective Simple Issue Statements

Examples of Deep Issues

Tables/Indexes

First opportunity for advocacy

Correctness in formatting, cite form, etc. important

Restate issues and argument outline; previews what the

case is about and kick-starts justices’ thinking

Insert last, after all editing is complete

Sample Table of Contents

Sample Table of Authorities

Statement of Facts

Tell a story

Think thorough, but short—just enough to cover what is

necessary to understand and decide the case

Disclose bad facts to protect credibility, but minimize

their importance to the story

Avoid argument, but nothing wrong with phrasing

favorably and persuasively if true to the record

Standards of Review

Abuse of discretion, plain error, de novo, etc.

A credible appellant’s brief will address them; good ones

embrace them

Don’t just tell the appellate court that reversal is

warranted because the standard is met; show it why

Summary of the Argument

Prepare it near end of briefing process, right before

tables/indexes

Distill your positions down to a few paragraphs

Justices will often read this section first

Argument and Authorities

Lead with the strongest, procedurally (rendition v.

remand) and substantively

Rely on the strongest authorities you can find (i.e., case

law from the highest relevant court and the court

deciding the appeal)

Confront weaknesses and authority contrary to your

client’s position and explain how you overcome them

Argument and Authorities (cont’d)

Break text up with headings at least every few pages

Roman numeral outlines are an effective tool for

organizing arguments and transitioning

Weave relevant facts into legal argument

Avoid substantive footnotes; usually, if an argument is

worth including at all, it should go in the text

Relief Requested

Consider carefully what you want the court to do

Ask for that relief specifically and, if appropriate, in the

alternative

As the appellant, you should request:•reversal and rendition of judgment favoring your client;

•reversal and modification of the trial court’s judgment; or

•reversal and remand for further proceedings (i.e., new trial)

Sample Briefs

Some are available through my JD Supra profile

I will be adding to my library in the coming months

Questions?

“Stop by” during office hours

Participate in the official study group

Visit the Appellate Discussion Lounge

Next Time . . .

Appellate Practice & Procedure

Class #5:

Handling an Appeal—Preparing Briefs

(Part II)

presented by

D. Todd Smithhttp://texasappellatelawblog.com

for

Solo Practice University™