An appeal begins when a party who is dissatisfied with a judgment or order of a trial court requests an appellate court to review the trial court's decision. The party appealing the case -- called the "appellant" or "petitioner" -- will attempt to convince the court that the trial court made an error in reaching its judgment or order. The party opposing the appeal -- the "appellee" or "respondent" -- will attempt to convince the appellate court that the court below made no significant error. One of the primary mechanisms through which the parties will present their arguments is the appellate brief.

    In most cases, at least three briefs are filed. The first brief, sometimes called the "opening" brief, is filed by the appellant. After the appellant's brief is served, the appellee has a set amount of time to file its brief, usually 20 to 30 days. The appellant may then file a reply brief. With the court's permission, briefs may also be filed by "amicus curiae" or "friends of the court."

1. A cover page with a caption
2. A Table of Contents
3. A Table of Authorities
4. A Statement Concerning Jurisdiction
5. The text of relevant portions of constitutions, statutes or regulations involved in the appeal
6. Questions presented on appeal
7. A statement of the case
8. A summary of the argument
9. An argument, with point headings
10. A conclusion

The Law
    The question presented should include a reference to the governing law. For example, the issue might begin, "Whether the First Amendment prohibits...." It can be helpful to put the reference to the law early in the question, for context.

A Checklist for Critiquing Questions Presented:

A checklist similar to this one has been used by faculty members at an appellate training program for lawyers:

    In most jurisdictions, the rules require that each brief include a table of contents.The table of contents must contain every heading in the brief as well as a page reference for each. The most important headings contained in the table of contents are the argument point headings. When the point headings are assembled in the table of contents they should provide a complete and cohesive outline of your argument.

    Many, but not all court rules require the petitioner's brief to include a separate statement of the source of the court's jurisdiction. The United Supreme Court, for example, requires "[a] concise statement of the basis for jurisdiction in this Court, including the statutory provisions and time factors on which jurisdiction rests." Sup. Ct. Rule 24.1(e). The Federal Rules of Appellate Procedure have more detailed requirements.

Compliance with Court Rules:

    As with questions presented, most jurisdictions give little guidance as to the substance or format of the statement of the case. The Supreme Court Rules provide only that the appellant or petitioner's brief shall include "[a] concise statement of the case, setting out the facts material to the consideration of the questions presented, with appropriate references to the joint appendix…. ". As noted above, the Federal Rules of Appellate Procedure give little more guidance, except to require the procedural history before the facts. Appellees are generally not required to include a statement of the case. In practice, many attorneys do omit this section. But in so doing, they relinquish a powerful tool for persuasion. Unless court rules or custom prohibit the appellee from including a statement of the case, leaving it out will result in a lost opportunity for persuasion.

Writing the Facts:

A checklist for facts:

John W. Colley provides the following checklist for evaluating fact statements.

• Have I complied with pertinent court rules?
• Does the statement read like a novel?
• Does it have discernible beginning (describe facts which precipitated the dispute), middle (facts which develop the story), and ending (which provides closure and brings the story back to the judicial process)?
• Does the statement chronicle events in the time sequence of their occurrence?
• Are the characters, dialogue and events integrated into an interesting plot?
• Does the statement have direction - does it foreshadow the arguments which are to follow, without containing argument?
• Does the statement have simplicity of style, thoroughness, and credibility?
• Is text interspersed with headings and subheadings?
• Does the statement contain appropriate references to the record?
• Are footnotes and quotations used sparingly and tastefully?
• Is any information quoted out of context?
• Is every sentence an accurate portrayal of the evidence in the record?
• Are any material facts omitted?
• Are the material facts which are unfavorable to your client disclosed and dealt with properly?
• Do the facts support your theory/story, and show the impossibility of your opponent's?
• Are there any facts in the Statement that are redundant or otherwise unnecessary?
• Is the Statement of Facts sufficiently accurate and objective to qualify for adopting by the court as the facts portion of a judicial opinion?

What Judges say about Fact Statements:

Take a moment to read the summaries of the argument in the Texas v. Johnson briefs. Think about the following questions: Compare the summaries with the point headings.

• Do they do more than repeat the point headings?
• Do the summaries connect the individual arguments?
• Do the summaries give you a good sense of what the parties are arguing?
• Do the summaries persuade?

    In some cases, it will not be possible to present the strongest argument first. Sometimes, for strategic reasons, it will make more sense to present first the argument that would give the broadest relief, even if the grounds for that argument are less solid. In other cases, logic may dictate that certain arguments be presented first. This is the case when there are jurisdictional or other threshold issues. Whatever order you choose, the order of the arguments should correspond to the order of the questions presented. This is actually required in some states. And it makes organizational sense.

Take a look at the Respondent's arguments.

• What ordering principle does the Respondent seem to have chosen?
• Are any of the arguments threshold arguments?
• Would any of the arguments result in broader relief, or relief based upon a broader legal decision?
• Why do you think the writer chose this order of argument?
  

Organization generally
    On a large-scale level, divide the argument section into separate sections, with each preceded by a point heading. The point heading and material within the argument should answer the corresponding issue. After the point heading, it is helpful to begin each section with a paragraph that summarizes the argument. Within the argument, you should make your strongest points and marshall your strongest authorities first. Be sure to state your own case before you begin responding to your opponent. More often than not, it is ineffective to start out by addressing the other side's authority and argument. Save your responses to the other side until after you have made your own case.

    After you have completed your argument and responded to your opponent, it is often helpful to end the section with a "summation" . that briefly restates your argument slightly more thoroughly than the point heading

Go to the Respondent's argument that the statute punishes speech solely on the basis of its viewpoint (Section IIA). Read through all of Section IIA, paying special attention to the internal organization.

• Does the Respondent start with a summary of the point?
• When does the Respondent address opposing arguments?
• Does the Respondent summarize the argument at the end of the section?

Logical Argumentations
     Your arguments will be most persuasive when expressed through deductive reasoning. For each argument, you should clearly state a major premise and. Sometimes a brief citation to authority may be sufficient grounding. But for your principle points and all points that are disputed, the premise may need to be grounded through a thorough review of relevant precedent. You must do more than cite cases. You must analyze the cases supporting your main propositions and where appropriate present a brief synopsis of the facts, holding, and rationale. In appellate courts, especially courts of last resort, it may be appropriate to cite to treatises and law review articles. Such sources are better received on the appellate level than in the trial court.

    After setting forth your major premise, that is, the law, continue your deductive presentation by applying the law to the facts of the case. This is your minor premise. In this section, show how the law applies. To do so you will need to repeat some of the facts you first mentioned in the statement of the case. Be sure to clearly link the law and the facts; don't rely on the reader to make the connections for you. And be sure to ground the facts contained in your minor premise by citing to the record. One caveat about logical argumentation: Logic alone will not win your case. You must also make sure it is clear to the court that the outcome you seek is both fair and makes sense as a policy matter. As one judge says, "[b]e sure and tell why it is important to come out your way, in part by explaining the consequences if we don't."

Tone
    Your argument should be forceful and interesting, but should avoid heated rhetoric, overstatement and hyperbole. Your tone should be serious and earnest, but not overzealous. You should never attack the trial court judge or opposing counsel. This is a sure way to lose credibility with the appellate judges. Be as direct as possible. Avoid hedging language such as "it would seem." By the same token, avoid overconfident language such as "clearly" and "obviously." What you think is obvious may not be so obvious to the judge reading the brief. Be accurate in your statements of the law and facts, but don't be too even-handed. You are an advocate, after all.

Quotations
    Quotation of authority can be useful if used sparingly. You should include quotations only when they add something to the brief. There are certain useful purposes for quotations. A quotation is helpful if it will ease the judge's reading burden. Brief quotation of key authority will allow the judge to avoid getting up and going to the library to verify your authority. Quotation may also be useful if it would be difficult to follow the discussion without the text of a statute, contract, or other source at hand. A quotation of authority may be the best way to convey an idea if a court has previously expressed it better than you ever could.

    Seemingly endless, long quotations, especially when used frequently, make a brief unappealing and difficult to read. When you use a long quotation, judges, like most readers, are likely to skip at least part of the quote. As Judge Alex Kozinski has remarked (giving tongue-in-cheek advice on how to lose an appeal), "Block quotes, by the way, are a must; they take up a lot of space but nobody reads them. Whenever I see a block quote I figure the lawyer had to go to the bathroom and forgot to turn off the merge/store function on his computer. Let's face it, if the block quote really had something useful in it, the lawyer would have given me a pithy paraphrase."

    So if you do use a quotation, try to keep it as short as possible. Consider integrating it into the text and quoting only a fragment rather than a full sentence or several lines. If you must use a long quote, consider employing italics or underlining to emphasize the most important language.

Compare the use of quotations in the Petitioner's and Respondent's briefs.

• Which side uses more quotation?
• Does either side use too much?
• Is the use of quotation effective?

• Does either side overdo it? -Are the footnotes helpful?
• Could any of the footnote material have been deleted or moved to the text?
• Would any of the text have been more effective if placed in a footnote?

    The rigidity of the outline form may seem unnecessarily formal. But it serves a useful purpose in helping to organize the advocate's thoughts. The outline form forces the advocate to understand more clearly how the arguments fit together and relate to one another. The outline helps make clear to the writer which arguments are subsidiary to other arguments. When the writer understands the hierarchy of arguments, so will the reader.

You should try to do several things in your headings:

• identify the ruling you want;
• identify, or at least allude to, the controlling or proposed rule of law;
• refer to the key facts that are material your argument;
• state the reason why the court should rule as you ask

    Needless to say, complying with all of these requirements at once can be rather difficult in the face of a competing requirement of point headings: They should be a single sentence and easily understood in one reading. How are these seemingly contradictory goals met simultaneously? First, the tasks should be divided between the headings and subheadings. What cannot fit into the main point heading is likely to be suitable for the subheadings. And when the relief sought is completely obvious from the context, it can be left out of the heading in favor of other more informative material.

    Another shortcut pertains to the rule. Often, the rule of law need not be stated in the point heading. It can be merely alluded to. For example, the heading may read, "The action should be dismissed because the plaintiff has not alleged consideration for the contract." It is not necessary to state directly that a contract requires consideration. A brief reference to consideration in the heading will inform the reader that a lack of consideration will be discussed in this point. The intricacies of consideration requirements can be left to the text. Or, if the rule of law is hotly contested or the analysis complex, the rule of law may be stated in a subheading.

    Don't overload your points with information. Remember, these are "headlines" and should be inviting, not overwhelming. And just as you should not overload your points with information, you should not overload your argument with headings. The headings should lay out the most important logical steps in the argument, but they should not break up the argument to such an extent that it loses its flow. Unless the logic is complex or controversial, it is not necessary to construct a heading for every step of your syllogisms.

Carefully examine the point headings in the briefs:

• Do the headings help you navigate the brief?
• Are the major headings independent, completely, and freestanding grounds for relief?
• Are the headings argumentative and case-specific?
• When you read the point headings in the table of contents, do they give a clear outline of the brief's arguments?
• Are the headings clear and readable?
• Are there enough? too many?
• Do you prefer the headings in one of the briefs over those in another?

• In the reply brief, the Petitioner is more expansive with its conclusion, is this technique effective?