Monday, August 31, 2009

NYLJ: Briefing Mistakes

First up from the NYLJ's current appellate coverage is Harry Steinberg's article listing the Top 10 Common Brief Writing Mistakes.

My two favorites:

"1. Failing to take full advantage of respondents' and reply briefs. . . . The most potent argument you can make is that your opponent has ignored or mischaracterized key facts and/or has failed to cite controlling cases or has cited cases that do not actually support the argument being made."

"2. Failing to explain why the trial or motion court should be reversed. The flip side of the first error is that an appellant will merely rehash the argument made in the lower court without explaining exactly what is wrong with the order on appeal and why it should be reversed."

Together, these pinpoint the perfect appellate brief -- one that addresses the trial court decision AND rebuts the opponent's arguments.

But I disagree with Harry on a couple points:

He writes, "Many lawyers feel that they are obligated to force-march the appellate court through the entire procedural history of the case whether or not it is relevant to the issue on appeal. This is a myth. . . . There is no need to recite the date the summons and complaint was filed . . . ."

I recommend covering the "operative" procedural history in all cases and including those documents in the record -- things like the complaint and the answer. Courts often resolve appeals on isues like timeliness or waiver, and the operative documents may allow the court to reach them.

Harry also writes, "Write a preliminary statement that is, in effect, a mini-brief. In no more than three to five pages, identify the nature of the appeal and the parties and their claims, briefly describe the facts and the outcome in the trial court and conclude with a brief description of what you would like the appellate court to do and why."

This is an absurd embodiment of a good idea. It is CRITICAL to identify the nature of the appeal, the parties and their claims, and why you win. But it is POINTLESS to consume five pages to do it -- that is asking the reader to skim or skip it.

You should do so in a SHORT introduction. One page max. One paragraph is better. You should also use the table of contents (1 page is best) to lay out the outline of your argument.

If you can't sum up the case and why you win from a 1-page table of contents and a 1-page answer, you may not truly understand your appeal. And you certainly can't expect the court to understand it.