This article appears substantially as published in the December 7, 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.
In my last column (“A persuasive argument requires an effective Argument section,” Aug. 3), I offered some suggestions to make the Argument section of an appellate brief more effective and persuasive. Here are some additional observations.
Keep your arguments short
Keep arguments as short as possible. Each legal argument should focus on the specific issue in controversy. Avoid wasting precious space and losing the reader’s attention by including pages of boilerplate law on undisputed background issues.
Be honest and do not ignore opposing arguments
Be honest and accurate about the law. Don’t ignore contrary authority (aside from the ethical implications of doing so, the Appeals Court or your opponent will find it anyway).
Be sure that the cases you rely on fully support the legal propositions for which you cite them. Your credibility and the persuasiveness of your brief will be seriously damaged if the judges conclude that your version of the law cannot be trusted.
Similarly, do not ignore the opposing party’s arguments, even if you represent the appellant and the appellee has yet to file a brief. If the appellee made arguments before the trial court, they will certainly be made again on appeal. If the opposing party has not discovered the best argument against your position, the Appeals Court probably will. It is best to deal with the argument as best you can in your primary brief.
Choose your authority carefully
As part of keeping your arguments simple and short, carefully consider your use of citations.
- Stress binding authority. Absent that, look for the most authoritative, persuasive authority (e.g., cite to a persuasive federal case from the 1st Circuit instead of one from a different circuit);
- Choose authority in which the court was applying the same standard of review or was deciding the same or similar procedural motion;
- Unless it is absolutely clear, use parentheticals to show the reader why you are citing to a particular case;
- Limit string cites. The judges and their clerks don’t want to read 10 cases when one or two would prove your point. String cites are proper, however, when the number of courts on each side of an issue is actually relevant, as in a split of authority or when asking the Appeals Court to rule on an issue of first impression;
- Limit citations to trial court opinions. Trial court opinions have become much more accessible in recent years via Westlaw, Lexis and similar resources. However, such opinions are at most persuasive. Nevertheless, I believe that it is useful to cite trial court opinions when no other authority is available, when they present your position particularly forcefully, or when they involve facts very similar to your case.
Maintain the reader’s interest
Your brief will be more effective if it holds the interest of those who must read it. Simple steps you can take to hold readers’ interest include:
- Avoiding long quotations. Short quotations, on the other hand, enhance the power of your argument. Introduce any quotation by explaining why you are including it and what legal proposition it supports. Doing so ensures that the reader understands your argument even if he or she skips over the quoted material;
- Using short paragraphs;
- Varying sentence length. A paragraph also will flow better if the sentences differ in length. In addition, although short sentences are powerful, they lose their effectiveness if overused;
- Repeating words and sentence structure to increase effect. We’ve all heard this technique used in speeches. It also works in briefs.
In addition to the foregoing, you also should consider the following when drafting your Argument section:
- Because Appeals Court judges worry about the precedent a ruling will set for future cases, try to show that the result you seek can be accomplished by applying a rule with limits. If you are opposing the application of such a rule, argue that it will lead to unforeseen, highly detrimental consequences;
- Appeals Court judges want to reach decisions that are just, not merely technically correct. Your argument should not only identify the rule of law you want the court to apply, but also explain why the purposes and policies underlying the law support its application to the facts of the present case;
- Avoid emotional presentation and attacks on the opposing party or counsel. For example, while asserting that your opponent’s reliance on a case is “misplaced” is acceptable, you should avoid stating that your opponent is “misrepresenting” the law;
- Do not use jargon. Use simple, clear language. Judges and clerks who have to read many briefs each day will not appreciate you making an argument any more complicated than necessary;
- Avoid excessive use of bold print, underlining or italics. Used sparingly, emphasis stresses your most important points. However, it quickly loses its effect if overused;
- Avoid using footnotes for substantive content. As a general rule, if an argument is important enough to appear in your brief, put it in the text. You might consider placing all of your citations in footnotes, however. Doing so will improve the readability of your brief.
The Argument section of your brief is your best — and perhaps your only — opportunity to persuade the Appeals Court judges to rule in your client’s favor. A well-crafted argument will frame the facts and legal issues of a case in the manner most favorable to your client; will educate the justices about the relevant facts and law; and will lead them, inexorably, step by step, to the desired result.
The foregoing suggestions should help you take advantage of this golden opportunity.