Just as playing a musical instrument, painting a work of art, or writing a novel are forms of art, so too is appellate advocacy. There is no science to winning an appeal; what will win one may lose another. But there are some strategies that can help make appellate advocacy more effective. This blog explores the art of appellate advocacy in Indiana, providing tips for success in the appellate courts.
The argument is what will win or lose an appeal. However, every other section of the appellate brief leads up to the argument, most importantly, the issues that are being argued. While most clients can point out at least a dozen reasons why the trial court’s final decision is wrong, the best strategy in appellate advocacy is to narrow down the issues to no more than three (Justice Laskin, ―Forget the Windup and Make the Pitch, p. 13.). Many judges will look at a brief containing numerous issues and immediately assume there is no real issue or good argument, so we are simply throwing in the kitchen sink, referred to as the “kitchen sink method” and discouraged by the appellate court (Reed v. Reid, No. 40S01-1107-PL-436 (Ind. Dec. 19, 2012)). When choosing which issues to argue, start with the standard of review for each one, then consider the strength of your argument as well as whether the issue is outcome affecting. When you have an issue solely of law, it may be the one with the most lenient standard of review, but perhaps not the strongest argument.
How the issue is phrased is also critical. The court should be able to determine exactly what the case and dispute are about by simply reading the statement of the issues and should not be required to guess what is being asked. An efficient issue statement contains the legal question, controlling law, and the legally significant facts (Persuasive Issue Statements. The Writing Center at Georgetown University Law Center, 2015.). A persuasive statement of an issue will also lead the court to the conclusion most favorable to your client (Asking Effective Questions: Statement of Issues Presented for Review. 2021.). A properly and persuasively phrased issue can keep both the writer and the audience focused on what is really important.
The statement of the case and statement of the facts are excellent opportunities to begin convincing the reader that the outcome for which you are advocating is the only correct one, before even getting to the argument. The statement of case should include a brief description of the nature of the case, the proceedings relevant to the issues, and the disposition of each issue (Ind. App. R. 46(A)(5)), not a play by play of the CCS. It should also not include anything irrelevant to the issues being appealed but simply provide a short overview of what happened that led to trial and then to appeal. The statement of facts should be a narrative of the facts relevant to the issues on appeal, and not a summary of the witness testimony (Ind. App. R. 46(A)(6)). When writing these sections, keep in mind that the appellate judges are not familiar with your client or anything about the case. It is up to you to educate the court. Both of these sections can be used to minimize what may negatively affect your case and maximize that which supports your arguments and conclusion. Leading each paragraph with facts that put your client in the best light can induce the reader to look for facts and information supporting your client and your argument, while skimming over that which may adversely affect your argument and conclusion. However, never leave out facts that may be damaging to your case if they are relevant to the issues. This can harm your reputation and credibility, leaving the court to wonder what else you may have neglected to mention.
When writing your argument, remember that the judges who will be reading it may not have any experience in the particular area of law or with the laws that apply in the particular case. Again, your job is to explain, inform, and lead your reader to the correct conclusion. Do not assume that the judges know anything about the law, as it applies to your client’s case. Walk the audience through the facts and the law logically and in as few words as possible. While it may be a large part of their job, judges still get tired of reading briefs and can become bored or even confused by repetitiveness, paragraphs that must be read more than once to understand what the writer is saying, and arguments that could have been made in half the number of pages (Blackwell, S. Legal Writing Tip: Include a Summary of Argument, 2017.). On that same note, cutting down on citations to only the most important or controlling case, using headings and subheadings where appropriate, and writing to tell a story, setting the scene, describing the characters, and making your client a human being, not just an appellant or appellee, can help persuade your reader, as well as prevent mere skimming instead of actual reading (Lamparello, A. Writing an Outstanding Appellate Brief, 2019). Finally, use the summary of argument section to tie the main points of your argument together, highlighting what it is that you want your audience to keep in mind while reading the full argument.
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.