This article appears substantially as published in the July 30, 2015, issue of the Massachusetts Lawyers Weekly. Attorney Manwaring writes the newspaper’s Appellate Issues column, which is devoted to matters arising from the appellate process.
While each section of your brief must be drafted with care and creativity, the other sections set the stage for an effective Argument. It is in the Argument section that you explain the law and show how that law requires a ruling in your client’s favor. In the one-third of appeals which are decided without oral argument, your brief is your only opportunity to present your legal positions to the justices.
Here and in my next column, I offer a few suggestions to make your Argument section more effective.
Do not merely cut and paste from a trial court brief.
If you take nothing else from this article, you should be convinced that an appellate brief is a specialized document that should be written from scratch.
Be methodical and organized.
In determining how to draft the Argument section, keep in mind that your audience consists of Appeals Court justices who do not know the facts of your case as well as you do. Further, because the justices may be generalists, you should not assume that they have expertise in the legal subject matter of your appeal. Do not skip steps in your legal analysis, assuming that the justices will follow along. If your argument has multiple conceptual steps, clearly lay out every one leading to your ultimate conclusion.
Because you need to methodically lay out your legal analysis, your brief’s Argument section should be highly structured. Although the Summary of Argument section of your brief provides an overall roadmap, each major argument within the Argument section should have its own roadmap paragraph.
Use headings and sub-headings.
You should also use headings and sub-headings to help the reader keep track of complex arguments. The major headings in your Argument section should simply state your position as to each of the issues which you listed in your Statement of Issues. Thus, if one of the issues was, “Whether Jones is liable to Brown for negligently entrusting her vehicle to Smith,” your heading might read,
Jones is liable to Brown for negligently entrusting her vehicle to Smith because: (1) Jones gave Smith specific or general permission to drive the vehicle; (2) Smith was incompetent or unfit to drive the vehicle; (3) that unfitness was the proximate cause of Brown’s injuries; and (4) Jones had actual knowledge of Smith’s incompetence or unfitness to drive the vehicle.
Sub-headings should track the subsidiary propositions which, together, lead to the conclusions stated in each major heading in your Argument section. Under the negligent entrustment heading, sub-headings might include: “Jones gave Smith specific or general permission to drive the vehicle,” “Smith was incompetent or unfit to drive the vehicle,” “Smith’s unfitness was the proximate cause of Brown’s injuries,” and “Jones had actual knowledge of Smith’s incompetence or unfitness to drive the vehicle.”
Because a justice may first read only the headings and sub-headings, they should be written to provide a stand-alone explanation of your argument. Doing so will also enable your Table of Contents, in which the headings will appear, to serve a persuasive function, summarizing your argument. It follows that instead of simply stating legal conclusions, your headings and sub-headings should contain sufficient facts to support the conclusion. Compare, for example, “Jones gave Smith specific or general permission to drive the vehicle” with “By handing her car keys to Smith, Jones gave Smith specific or general permission to drive the vehicle.”
Incorporate the standard of review.
As your audience consists of appellate justices, you should frame each of your arguments in terms of the applicable standard of review, just as you framed each issue in your Statement of Issues. For example, if the standard is abuse of discretion, argue that the lower court abused its discretion, not merely that it erred. The standard of review may be your best asset or greatest obstacle.
Order your arguments for maximum effect.
Keeping in mind your overall objective (to convince the justices to rule for your client) also helps determine the order in which to present your arguments. As the appellant, your goal is to show that the trial court misunderstood the facts or misapplied the law and why that requires reversal. As the appellee, you must show why the trial court was right.
If there is a natural, logical order in which the arguments should appear, use it. For example, a threshold argument, such as lack of standing, that will enable the Appeals Court to rule in your client’s favor without considering the other potential issues, should be addressed first.
In the absence of a logical order, present your best argument first and, if possible, bury weaker arguments in the middle of your brief. You must do this because the justices will probably assume that your strongest argument appears first.
If you represent the appellee, you must decide whether to follow the order of argument in the appellant’s brief. Doing so makes it easier for the justices to compare your arguments with the appellant’s arguments on the same issue. However, following the order of argument in the appellant’s brief may result in your strongest argument not appearing first. I recommend using the most effective order for the arguments in an appellee’s brief, even if it differs from the order used by the appellant.
Keep the focus on your client’s arguments.
Within each division of the Argument section and within individual paragraphs and sentences, maintain a focus on your client’s position and view of the case. Refer to your opponent’s position in subordinate clauses or buried in the middle of sentences and paragraphs.
Utilize the trial court’s opinion.
If you represent the appellant, you should show why each argument relied upon by the trial court is flawed. Conversely, the appellee should argue in support of the trial court’s reasoning. Consider, also, whether the judgment should be affirmed on grounds other than those on which the trial court relied.
If seeking costs or attorney’s fees, request them in your brief.
Mass. R. App. P. 26 provides for the awarding of appellate costs if the Appeals Court makes no provision for costs in its decision. However, it is advisable to expressly request such an award in your brief, especially if you seek an award that differs from what Rule 26 would require. Appellate counsel fees are awarded only when authorized by statute or when an appeal is frivolous. Mass. R. App. P. 25. A party seeking attorney fees should include such a request in the brief.
In my next column, we’ll examine additional ways in which to enhance the power and effectiveness of your brief’s Argument section.