Appellate Briefing: Some Thoughts on Writing Briefs That Can Clear a Path Through the Jungle

From the introduction:

Appellate lawyers know there are things we cannot change. We cannot rewrite the trial court record to fix a trial lawyer's failure to make a proffer of excluded evidence. We cannot travel back in time to make sure that the court reporter transcribes a bench conference that included an important voir dire ruling never reflected in the record. We cannot give a key witness a second chance to testify after opposing counsel performs an Oscar-worthy cross-examination. And we cannot change the verdict that the judge or jury reached. Instead, just as a tortfeasor learns that "you take the plaintiff as you find him or her," we must take the record pretty much as we find it.

But there is one thing we can do, either to change the outcome for our client if we are seeking a reversal, or to safeguard a winning result if we are asking the appellate court to affirm. We can write an excellent brief.

That brief is likely to be the only chance we have to present our client's position to the appellate court. In 2009, the Mississippi Supreme Court heard oral argument in only twenty cases out of the 382 it decided. The Mississippi Court of Appeals heard oral argument in just fifty-eight cases out of 639.

A great brief can win a case, but if it is less than excellent, it can lose the case, too. Chief Justice John Roberts has said that reading a poorly written brief is "almost like hacking through a jungle with a machete to try to get to the point. You spend all your energy trying to figure out what the argument is, as opposed to putting your arms around it and seeing if it works." Do not send the appellate court into the jungle with a machete. Instead, give the court a way to get through the jungle quickly, on a path that leads to the result that your client wants. For this, the court needs a well-written brief that is concise, persuasive, and clear. To use the Chief Justice's words, when you give the court a well-written brief, you and your client are ahead of the game: the judge who is reading the brief "kind of gets a little bit swept along with the argument," and "can deal with it more clearly, rather than trying to hack through." This Article provides a few ideas and strategies for getting through the wilderness.