This article appears as published in the April 7, 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.
Study the record.
Do so even if you were also the trial attorney, because you may notice aspects of the case that were not readily apparent in the heat of a trial.
This review should be completed as soon as possible. An in depth knowledge of the record is important when deciding whether an appeal of the trial court’s decision should be pursued at all.
In addition, under the Massachusetts Rules of Appellate Procedure, the parties must make a number of decisions early in the process, which require a knowledge of the record.
For example, under Rule 8(b)(1), the appellant must, with 10 days after filing the notice of appeal, decide which portions of the trial transcript to include in the record. Unless the entire record is to be ordered, the appellant must file and serve on the appellee both a designation of the parts to be ordered and a statement of the issues that the appellant intends to present on appeal. The appellee may then file a counter-designation.
Similar requirements exist under Rule 8(b)(3) for cases in which the testimony has been electronically recorded.
Obviously, the appellant cannot intelligently decide which parts of the transcript to order and identify the issues on appeal, nor can the appellee counter-designate other portions of the transcript, unless both have become familiar with the testimony and the record in general.
Similarly, pursuant to Rule 18(b), within 10 days after the lower court clerk notifies the parties that the record has been assembled, the appellant must serve on the appellee a designation of the parts of the record that the appellant intends to include in the appendix (which is usually filed with the appellant’s brief) and a statement of the issues that he intends to present for review. The appellee may then serve a counter-designation.
Again, in order to choose which documents to include in the appendix (which should contain all documents the brief will rely on), and to identify the issues on appeal, counsel must become familiar with the trial record and the legal issues as early as possible.
Summarize the relevant facts.
While reviewing the record, summarize the relevant facts, noting any legal issues raised by those facts. Omit from your summary any facts that are clearly irrelevant.
In addition to aiding your designation or counter-designation of the transcript and of items to be included in the appendix, your summary of the record can serve as a draft statement of facts for your appellate brief.
Be sure to include in your summary detailed citations to record. Because you will not yet have created the appendix (if you are appellant’s counsel) or received the appendix (if you are appellee’s counsel), cite to the documents in the record by name and page.
Appellant should prepare one copy of the appendix.
Once the contents of the appendix have been agreed, the appellant should prepare one copy of the appendix. If there are many pages of transcripts or exhibits, consider segregating them into separate volumes of the appendix as allowed by Rule 18(e). Note that no single volume of the appendix may be more than 1.5 inch thick.
After the appendix is complete, you can convert the citations in your summary of the record into cites to pages of the appendix. Having a completed appendix will assist you in drafting the brief.
Research all of the appellate issues, even if they have already been researched and briefed in the trial court. That includes, among other things, reading and updating all of the cases cited in the other side’s trial court briefs on the issue and, if you are the appellee, all the cases cited in the appellant’s brief.
Identify the standard(s) of review.
The standard of review determines how much deference the Appeals Court gives to the findings and rulings of the trial court.
Rulings of the trial court on different issues may be subject to different standards of review. You should determine, and later state in your brief, the standard of review for each appellate issue.
Outline your argument.
Based on your research, create an outline of the headings and sub-headings for your argument on each legal issue. This outline will later help you organize the argument section of the brief.
Writing an effective appellate brief requires significant advance preparation. Taking the steps described above will make the writing process easier, result in a better brief, and enhance your chances of winning the appeal.
In my next column, I’ll discuss some of the technical requirements for briefs, from formatting to required sections.