Effective brief writing is not alchemy, voodoo, luck, or any combination of these. Nevertheless, good brief writing is the subject of debate and some disagreement between the appellate bar and the various Indiana appellate judges (judges on the Court of Appeals of Indiana and justices on the Indiana Supreme Court.) Nevertheless, there are commonalities to all effective brief writing that make for an effective appellate brief analyzed in this blog.
Perhaps the most important—and agreed—point to appellate brief writing is that it should clearly and precisely set out the alleged error(s) of the trial court. An appellant’s or appellee’s brief does not have to use the thirty (30) pages allotted or 14,000 words. Verbose, incoherent (called not cogent by Indiana’s appellate courts), or inflammatory briefs are likely to work the inverse and not clearly and directly get to the point of the alleged error. If this is the case, a viable appeal may be lost on “bad” briefing. In other words, what may have been a viable brief and a “winner” may be lost because of these shortfalls.
The point or take-away for effective brief writing is get to the point and make the point by citing relevant caselaw and statutes. Without this, every brief will likely fail.
A close second is to tell a story. Every family law case has a story to be told. It may be your story is not a winning story, but an appellant’s or appellee’s brief that does not tell the story of the harm of the alleged error is destined to fail. Why did the court err in awarding mother custody. What is the long-term harm associated with the trial court’s decision. Brief writing, just like a trial theme, is about telling a story that dramatically shows the harm that will occur if the Court of Appeals of Indiana does not correct this error. On the other hand, the story cannot be one that just paints worst case scenarios as that rarely, if ever, happens.
No matter your story, an appellant’s or appellee’s brief that disparages one (1) of Indiana’s hardworking trial judges is likely to garner little sympathy from the Court of Appeals of Indiana. The same with opposing counsel. An appellant does not have to love or even like the opposing counsel, but he or she does have to respect that lawyer. Taking cheap shots (which appellate attorneys are not going to do) at the opposing counsel is a sure-fire way lose or even be sanctioned under the appellate rules.
All said, one of the biggest mistakes made by appellant’s and appellee’s is not correctly citing to controlling statutory or caselaw. Stretching it to fit a position it does not support is not good briefing. That said, however, attorneys are free to argue for a change in the law because it is out dated or inconsistent. It is purely how the case is briefed and argued that makes the difference. In addition, and probably the biggest failures of briefing is the failure to cite to the record where each fact argued came from—despite the fact this is required by the Indiana Rules of Appellate Procedure.
This blog was written by attorneys at Ciyou & Associates, P.C. who handle cases throughout the state. This blog is intended to provide general information to make you a better legal consumer. This blog is not to be relied upon for any given legal matter or issue. The blogs are an advertisement.