Blurbs on briefs

After 29 years on the appellate court (Fifth District), I would like to offer some observations concerning approaches to writing a brief. These observations are my own, and I do not claim to represent them as those of my colleagues who I have enjoyed working with all of these years. They are intended to be practical, as opposed to technical, suggestions.

First, follow the Supreme Court Rules. That is stating the obvious and no more need be said.

An effective approach to presentation in a brief, appellant, appellee, or amicus, could easily include the following:

First, assume that we, the appellate panel, have read the briefs prior to oral argument. Do not assume we have the expertise you and your opposing counsel have in the particular area of law. Many of the judges on the appellate court have had concentrated areas of practice prior to their appellate service. Furthermore, many trial judges have had specific assignments, such as criminal, civil or family, for years. The expertise and depth of knowledge and experience they have acquired is truly admirable. This may not, however, encompass the broad scope of an appellate docket. Again, safely assume that your brief will be read and studied by each member of the appellate panel. Do not assume they have the expertise you have in your area of practice.

Tell us a story. Put the scenario into a coherent, understandable whole. You did that at the trial level. Tell us the story with clarity. Can your administrative assistant who typed the brief in final form explain this case to you, including the rational for your position? If not, should you reexamine and revise?

With the goal of clarity, play it straight in your statement of facts. A clearly biased statement of the facts in a case can easily bring into question the credibility of your position and the arguments supporting it. No case is perfect – you did not invent these facts—tell us those elements of the factual scenario that support your position, tell us the elements that are adverse to your side. A frank and thorough recitation of the factual scenario in your case, appellant or appellee, only strengthens the credibility of your brief. And, you do not want an appellate judge, upon reading your brief, wondering that if the facts were that good for your position, why are you the appellant, not the appellee.

Many appellate judges previously served as trial judges. We have experienced the wide scope of discretion a trial judge has on many questions and recognize when a trial judge has exercised that discretion. Do not ask the appellate court to reweigh the evidence in a case. It is appropriate, however, to examine a judge’s exercise of discretion or failure to exercise discretion when exercise of it would have been appropriate. Many former trial judges now sitting on the appellate bench may very well conclude: I would not have ruled this way, but this judge had the discretion to do so. This applies also to determining credibility.

As to your preparation of an appendix, of course follow the Supreme Court Rules. Do not, however, feel overly constricted by them. You may flesh out the proceedings in the trial court and supply a context both for the ruling and for your position as to that judgment.

Seek clarity as to the relief that you want and explain to the appellate panel the logic and consequence of your prayer for relief. Analogous to the concept of a lesser included offense, consider what alternative relief you wish the court to consider.

As an appellee, you must deal with the appellant’s position, but you are not limited to a response to their position. You handled the case at whatever stage with the implicit understanding that you would develop your own position and you should continue this stance in your argument as an appellee. Think outside the box; boxes are a nuisance.

Can you defend this position in oral argument when you are either questioned or challenged by a member of the appellate panel? Anticipate the challenge. How would you counter your own argument?

Play it straight intellectually. Do not leave the reader with the impression that either the argument, explanation of authority, or recitation of facts is not trustworthy. Do not sabotage yourself.

You have the expertise in your case. We, as members of the appellate panel, invite you to teach us, guide us step by step, and deal with the weaknesses as well as the strengths in your position. We will read and take seriously what you submit to our panel. We invite you to persuade us.

See you in court! 