This article appears as published in the August 18, 2014, 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.
My last column concerned how to ensure that a brief complies with the appellate rules. Here, the topic is the importance of drafting a clear and persuasive statement of issues.
A carefully drafted statement of issues is critical to the success of your appellate brief. An Appeals Court judge probably knows little if anything about your case before reading the briefs and is likely to go to those sections that provide an overview of the nature of the appeal, how the appellant claims the trial court erred, and what relief the appellant is seeking from the Appeals Court.
Accordingly, a judge may look at the statement of issues first.
Because your statement of issues may be the judge’s point of entry to your brief, it is very important that it clearly explains what the case is about. Care should also be given to choosing which issues, and how many, to appeal.
I recommend that you draft your statement before writing other portions of the brief. Having forced yourself to clearly identify and concisely explain the legal issues, you will be better prepared to decide which facts are relevant to those issues and should be included in your statement of relevant facts.
You also will have a better sense of how to structure the argument section of the brief to address those issues while ignoring irrelevant issues.
Form and clarity
Each issue should be stated in not more than one relatively short paragraph. Although many issues can be summed up in a single sentence, sometimes two or three sentences explain the issue more clearly.
Your appellate issues always should be stated as questions that can be answered “yes” or “no.”
I often begin an issue with “Whether …”, but other formulations (“Did…”, “Was…”) also work well. Unless there is good reason not to, the issue should be phrased so that the court can rule in your client’s favor by answering the question “yes.”
The issue must always be phrased in a neutral, non-argumentative way. Moreover, it should include the relevant facts, both those favorable and unfavorable to your case.
Consider, for example, a case in which the issue is whether an owner of property containing a swimming pool is liable under the child trespasser statute, G.L.c. 231, §85Q, for the death of a 17-year-old trespasser who drowned in the pool.
The primary defense is that the teen was old enough to discover and appreciate the risk posed by the pool. The issue of “whether the pool owner is liable under c.231, §85Q” is not nearly as good as one that includes the critical facts. The appellee pool owner might better state the issue as:
“Whether the pool owner is liable under c.231, §85Q, where the child trespasser was 17 years old, the pool was surrounded by a locked, 10-foot fence, and the pool contained no hidden dangers, although the pool area was unlit and unguarded.”
As that example demonstrates, you can stress favorable facts (e.g., by placing them near the beginning of the issue) and minimize unfavorable facts (e.g., by placing them later or by putting them in a subordinate clause).
It is often useful to incorporate the applicable standard of review in an issue. Thus, instead of asking whether the trial court erred when it excluded scientific expert testimony, ask whether the court abused its discretion in doing so.
Choice of issues
Although the trial court record may present many possible appellate issues, you should limit the appeal to issues that offer your client a realistic chance of success.
Given that only about 14 percent of appeals result in reversal, there are relatively few truly reversible errors. Thus, it is unlikely that you would have one, much less four, seven or 10 in your case.
Including a large number of issues can be detrimental. You should not waste the limited pages of an appellate brief making arguments that are predestined to fail. Further, pursuing weak arguments undermines your credibility and may reduce the effectiveness of an otherwise strong brief.
Consider the strength of your argument on each issue, both factually and legally. Investigate whether each potential issue was properly preserved for appeal (e.g., by objection at trial).
Also take into account the applicable standard of review. An issue subject to de novo review is more likely to succeed than one for which the standard is abuse of discretion.
A carefully drafted statement of issues introduces the Appeals Court judge to your case and provides a context for the facts and the law you present in later sections of the brief. The issues provide the lens through which the judge views those facts and arguments.
My next column focuses on how to present the facts, telling a story that convinces judges to rule for your client.