There are excellent books on writing great appellate briefs.
Most can be summarized (and I recognize that this is oversimplifying) to teach
the following: be brief, be concise, be direct, understand and correctly
describe your appellate standards of review, understand and correctly describe
your record on appeal, and understand and correctly describe your law. This blog entry will not attempt to imitate other
authors’ treatises. For more
information, the following treatise also has a detailed, practical chapter on
writing federal appellate briefs: Successful Federal Appeals in All Circuit Courts: A Practical Guide for Busy Lawyers (3d ed. 2017).
This blog entry is dedicated to three tips for successful
federal appeals that I share, as a Florida Bar board certified appellate
specialist, with you based on my twenty-two years as an appellate practitioner,
law professor, and lecturer. These three
tips are based on the experience I’ve gained, the mistakes I’ve made and
learned from, and the successes I’ve had and enjoyed. Nothing about this should
be construed as legal advice or the creation of an attorney-client
relationship.
No. 1 Read both the federal
and local rules of the federal appellate court [the circuit court of appeals]
It sounds basic, and perhaps boring. But I cannot over-emphasize
how important it is to take time to read the rules of the federal appellate
court in which you intend to file a brief or other motion or defend an appeal. First,
it is unrealistic to expect to do well in a federal court if you have not taken
the time to learn what they want.
Second, it is efficient and practical. Virtually all federal appellate
courts have strict, short deadlines. They are extremely busy appellate courts
and insist to compliance with their rules and deadlines. The federal rules of appellate
procedure and the rules of that specific circuit court of appeals need to be consulted
at the beginning of the appeal. The rules are available on each circuit court
of appeals website, and an online search can quickly and painlessly get you over
to that specific court.
If reading the rules feels like reading a recipe book or car
manual, I don’t blame you. But remember that the rules are there to help. They
are laid out logically, in order of the progression of the appeal, and the
threshold questions like jurisdiction and the timing of threshold submissions
are usually located in the front sections of the rules. The middle section generally focuses on the
content of motions, appellate briefs, and appendixes. The latter section generally focuses on
supplemental authorities, when a judgment is a judgment, post-decision motions,
and costs and attorney’s fees. When the rules are approached with that logical
order in mind, they become a much more interesting, and helpful, “owner’s
manual” that you can use to foresee more than the immediate deadlines and
requirements. So, I urge you to read
those rules.
No. 2 Start your record on appeal organization promptly
and ensure your record on appeal is complete
No matter whether you are in the role of appellant or
appellee, the proverb “Rome was not built in a day” should be placed above the
desk of every serious appellate lawyer.
It applies to the time necessary to develop a strong, deep understanding
of the appellate record, the issues worth pursuing and those worth discarding,
and the theme of the appeal. None of
that starts with mere review of the final judgment on appeal and a quick look
at dispositive motions. It starts with the final judgment, plus the pertinent
pleadings, motions, responses, orders, and hearings that led to that final
judgment.
As the appellate lawyer who was not litigating in the trial
court, when I represent an appellant, I review a record on appeal in federal
court along with the docket or case incident sheet and take great pains to
ensure the record is fully complete, including, in the case of jury trials, a
record with all pertinent trial exhibits admitted at trial. I also ensure that
the transcripts were all ordered and filed and, if not, that the transcript
information form to begin the process of obtaining those transcripts is
immediately initiated. When representing
an appellee, I also work to ensure I have a fully complete and extremely organized
trial file. I discard any documents that are not pertinent to the appeal, for
example, depositions never introduced at a jury trial.
No. 3 Look at your
record on appeal with a scrutinizing eye and draft your record summary promptly
As an appellate lawyer, my role is not simply to take the
trial lawyer and client suggestions about the issues on appeal. I value their input
greatly, but my role is to conduct a critical, de novo review, with a fresh
eye, to see what issues are most productive and what issues are not. As part of
that review, I almost always locate one or two issues that trial counsel and
the client did not see because the trial level litigation was evolving and the importance
of some of the issue or issues cannot be determined sometimes until the end of
the litigation. I also see issues that may seem extremely important to trial
counsel or the client that, under the appellate standards of review, are simply
going to be unproductive. The weaker issues might be a final issue on appeal,
at best. As an appellee, the issues might work from the standpoint of restating
the appellant’s issues on appeal.
It is a hard conversation to have with trial counsel and the
client to convey that the issue they thought was clear reversible error is an
issue more correctly controlled by a clearly erroneous, highly deferential
appellate standard of review that will likely get them nowhere and consume
valuable space in an appellate with word limits. Alternatively, it is a hard
conversation to have as an appellee to convey that the appeal may be reversed
because an argument was either not properly preserved for appellate review or
not properly advanced. I have these conversations later in the appeal, after I’ve
firmed up the issues I know are productive or, as an appellee, after I have
received the appellant’s brief. I keep an open mind about the weaker issues,
which may be helpful to prosecute or defend the appeal, for example, to convey
an overall theme or to tip an appeal in favor of one direction or another.
I complete my review and concurrently summarize that record,
with record citations, as quickly as possible.
In a large record with roughly 8000 pages, that can take as long as two
weeks. While reviewing the record, I also conduct cursory legal research of an
issue that my education and experience indicate might be productive. If it is
clearly not productive, then I discard it. If it possibly productive, I file it
for later consideration. If I can see the issue is productive, then I retain it
and continue reviewing the record with that productive issue in mind as well.
Prompt record review and record summary will accelerate and
strengthen the research of the legal issues that follows.
More tips will follow. More detailed information about federal appeals can also be located at Successful Federal Appeals in All Circuit Courts: A Practical Guide for Busy Lawyers (3d ed. 2017).
Nothing about this should be construed as legal advice or
the creation of an attorney-client relationship.
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