An appellate brief should not be written like a memo or law review; unless you want to lose your readers’ interest before you get them on your client’s side. The point of an appellate brief is to persuade the court that ruling in favor of your client is the only logical and fair thing to do. It is not to cite as many sources as you can find or quote every case with a relevant sentence or two. This blog explores the key factors that make an effective appellate brief in Indiana.
The very first factor that makes an effective appellate brief is the choice of issues. When a brief contains ten or twelve issues, it may appear as if there is no good issue to appeal, so you are throwing in everything but the kitchen sink (Stephanie Z. v. Kijakazi, 20 CV 5808 (N.D. Ill. Mar. 20, 2023)). This may cause you to lose your audience, and possibly your credibility, before you have really begun. When choosing which issues to argue, think about the standard of review for each possibly available issue. If the standard along with the facts is unlikely to result in a good outcome, cross the issue off your list. Select two to three of the issues with the strongest argument and leave the rest out. When formulating the statement of issues, you must leave no room for interpretation. The court should understand exactly what the case is about simply by reading your statement of issues. It should also not take a judge more than one minute to read and understand an issue. This sentiment cannot be expressed better than it was by Judge Eich who, referring to a 122 word issue statement said, “The intentional (or reckless) writing of a sentence that long should be at least a Class B felony.” (Writing the Persuasive Brief). Appellate judges are busy and do not have time to try and figure out what the issue really is.
Aside from being concise in your statement of issues, you should also state your issues objectively and in a way that is consistent with the standard of review (Clyde H. Hamilton, Effective Appellate Brief Writing, 50 S. C. L. Rev. 581 (1999)). This can help you to incorporate the standard throughout your brief. Another key factor that makes an effective appellate brief is a persuasive statement of the facts and the case. These two sections should not dryly recite information that can be obtained from the chronological case summary, contain any arguments, or disparage the opposing party or trial judge. They should instead focus on telling your client’s story from the client’s point of view. Beginning the story of the case with the facts most favorable to your client and those that portray the client in the best light can help your audience see the good in your client and maybe then gloss over negative information about the client contained later in the brief. When writing the statement of facts, include only those facts that are relevant to the issues being appealed and be sure to cite the page and line of the transcript or exhibit letter/number where that fact was admitted as documentary evidence in the trial court. You should also double check to ensure that all facts you intend to mention in your argument are included in the statement of facts.
Another key factor that makes an effective appellate brief in Indiana is of course, a good argument. However, even the best argument can become convoluted if too many quotations or citations to multiple cases saying the same thing are included. An effective brief includes citations to and quotes from only a few controlling cases alongside an explanation of how the law applies to the facts in the instant case.
The consensus among appellate judges is that they simply do not have time to read pages and pages of briefs containing irrelevant information. For example, if the date or time of an event or incident is not materially relevant to an issue being appealed, it should not be mentioned in the statement of facts or statement of the case. Many judges have found that the longer the brief, the less effective the argument (The New York Times). Other issues with appellate briefs that judges agree are a problem include excessive footnotes (Bar Association of San Francisco), not referencing the page in the appendix where a document can be found (New Jersey Law Journal), and using legalese or industry terms as opposed to plain English.
This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. The blog is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.