Friday, August 19, 2016

Practitioner's Playbook: The Appellate Brief

That's the title of an article in Law360 today here. What wisdom does it contain?
The briefs are the key to an appeal. So briefs that have sloppy writing, thin legal research, even a typo, miscitation, erroneous fact or imprecise argument may thwart success.
Briefs need to be organized. Provide a roadmap of the issues, which are the most important, and which are alternatives. A good brief can be a guide for the court about how to structure and write its opinion. Include an introduction that tees up the case and the issues. Omit superfluous facts, especially dates. Don't underestimate your opponent, i.e., anticipate what the other side will say. Use a fair and even tone. Keep sight of the big picture, i.e., have a theme and a meme that simply and memorably encapsulates your position.

Today's DJ features Does a deferral effectively deny a motion to compel? by Jim Martin and Kasey Curtis, about a pair of 9th Circuit opinions (Van Dusen v. Swift Transportation and In re Swift Transportation) addressing arbitration appeals.=
Van Dusen demonstrates that the only appealable orders are those specifically set forth in the FAA - here, an order actually denying a motion to compel. Orders that merely defer ruling on the motion are not a denial and do not confer appellate jurisdiction. Swift Transportation, by comparison, demonstrates the difficulty in using writ relief to obtain a prompt decision on arbitrability.