This article appears as published in the March 3, 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.
A case before the Appeals Court is a high-stakes endeavor. It usually represents the appellant’s last chance to obtain a favorable result. Conversely, the appellee’s success in the trial court is worth nothing if overturned on appeal.
Whether you represent the appellant or appellee, your appellate brief offers the best opportunity to convince the judges you appear before to rule in your client’s favor. A quality brief is all the more essential because the Appeals Court decides about one-third of appeals without oral argument, based solely on the briefs.
Despite its importance, attorneys often treat an appellate brief as a mere re-casting of trial court memoranda. They fail to recognize that the brief will receive more thorough scrutiny than a trial court memo, is directed to a special audience (the judges and their clerks), and must present both the facts and the law in a manner calculated to satisfy the needs and expectations of that audience.
This column will examine how taking into account the unique characteristics and concerns of Appeals Court judges can help you draft a more effective appellate brief.
Your brief must be written to withstand rigorous scrutiny. Three judges and their clerks, all of whom read briefs for a living, will analyze yours in detail. The judges are likely to presume, in the first instance, that the trial court’s decision was correct. Accordingly, the appellant’s brief must show how the trial court erred and why the error was prejudicial and should be reversed.
Keep in mind that the judges hearing your appeal usually know nothing about the facts of your case until they read the briefs and the trial court’s decision. They certainly know less about the case than you do.
Similarly, because they deal with cases of all kinds, Appeals Court judges often are generalists and may not be experts in the applicable law. Your brief must educate them about both the facts and the law.
Appeals Court judges also do a great deal of reading. For a single case, a judge will probably have to read two 50-page briefs, a 20-page reply brief, the trial court’s decision, and various other relevant documents. As a result, the judges may have little patience with a brief that makes their job more difficult or wastes their precious time.
Your brief, and each argument within it, should be as clear and concise as possible and should “get to the point” quickly, rather than forcing the judges to wade through irrelevant facts or boilerplate law.
You must do everything possible to make your brief easy to read and your arguments easily understood. This places a premium on careful organization and the use of “roadmap” paragraphs. It should also impact the appellant’s decisions as to the number of issues to raise and the order in which to argue those issues in the brief.
Remember, also, that the function of an intermediate appellate court is to review trial court decisions for legal error. The Appeals Court does not find facts and generally does not make policy decisions, those being the province of the Supreme Judicial Court.
Your brief should, therefore, focus on whether the trial court committed a legal error warranting reversal.
Because they are reviewing the decision of another court, Appeals Court judges focus on the applicable standard of review. The standard of review determines how much deference the Appeals Court gives to the findings and rulings of the trial court.
Common standards include, among others, de novo review, under which the appellate court accords no deference to the trial court’s decision and treats the issue as though the trial court had never ruled on it, and the highly deferential abuse of discretion standard, under which the trial court’s decision will be reversed only if characterized by arbitrary determination, capricious disposition, whimsical thinking or idiosyncratic choice.
Obviously, the applicable standard of review significantly impacts the appellant’s likelihood of success. Because the standard of review is so important, a good appellate brief will frame its statement of the legal issues and each of its arguments in terms of the applicable standard.
Finally, the judges know that they are creating precedent. They will be concerned about how their rulings in your case may impact future cases. Is the legal rule they apply limited or will the court find itself on a “slippery slope”?
A good appellate brief will not only state the applicable rule of law, but will also explain why the purposes and policies underlying the law support its application to the facts of your case and identify how the proposed rule is reasonably limited. The party opposing application of the rule may argue that it lacks limitations and will lead to unforeseen, catastrophic results.
By keeping in mind the unique characteristics and concerns of Appeals Court judges, you can draft a more effective and successful brief.