GUIDE TO APPELLATE BRIEFS

INTRODUCTION
This section of the web site provides you with some guidelines for writing and assembling an appellate brief. Before you examine the briefs in Texas v. Johnson, you may wish to review the text below. You may read straight through this section, or skip to the topic you are most interested in.
  Form
Question Presented
Table of Contents
Table of Authorities
Jurisdictional Statement
Statement of the Case
Summary of Argument
Argument
Point Headings
Conclusion

 

THE APPEAL

    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."


FORM
    The precise form for appellate briefs varies from jurisdiction to jurisdiction, but there are more commonalities than differences. The format is usually set out in the jurisdiction's appellate rules. The rules generally require that briefs include most of the following parts:
  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
Each part of the brief should appear in the specific order designated in the court rules.


WRITING THE BRIEF


QUESTION PRESENTED
    Click to see questions presented in Petitioner's or Respondent's brief
    The question presented is your statement of the precise legal question before the court. It should identify the legal issues at stake, with sufficient reference to the facts of the case to make the matter concrete and compelling. Each question generally consists of one sentence, often beginning with the word, "whether," though this formula is not required. In a more complex case, the question may be preceded by a short introduction setting out the key facts of the case.

    The question presented, like all parts of the brief, should be crafted to persuade the court to rule in your favor. The question is likely to be the court's first exposure to your case, and it is your first opportunity for persuasion. In addition to being persuasive, the question must be easily readable. It should be simply written and well organized.

Take a look at the questions presented in the Texas v. Johnson briefs, and decide whether you think they are persuasive.
  Petitioner's Question
Respondent's Question

Guidelines for Constructing the Question Presented

Compliance with Court Rules
    First and foremost, the question presented should comply with any rules of the court in which the brief is filed. Most court rules give little guidance as to the substance or format of the question presented. The Federal Rules of Appellate Practice, which govern appeals in the federal courts of appeals, provide only that the brief of the appellant shall include "[a] statement of the issues presented for review." The United States Supreme Court gives a little more guidance, requiring that the questions presented be "expressed concisely in relation to the circumstances of the case, without unnecessary detail. The questions should be short and should not be argumentative or repetitive." Under most rules, the appellee's brief is not required to include an issue statement, See Fed. R. App. P. 28(b)(2). This and other permitted omissions from the appellee's brief are found in Sup. Ct. R. 24.2. but it is generally not a good idea to forfeit this opportunity to persuade.

Structure:

What to Include
    The "question presented" should include, of course, a question. In addition, it should include a reference to the governing law and the determinative facts. The question will usually be most manageable if the question and governing law come first and the determinative facts come last.

Do the questions presented in Texas v. Johnson put the question and law before the determinative facts?

  Petitioner's Question
Respondent's Question

The Question
    The question presented should consist of a question beginning with a verb ("is," "does,") or with the word "whether." The latter produces a sentence fragment that may seem jarring to the uninitiated, but which is perfectly acceptable in this context. In fact, the "whether" formulation is very common. There is some disagreement about whether "whether" produces a weak and tedious formulation, or is instead the most effective way to phrase a question presented. This is probably more a matter of taste and personal preference than anything else.

How do the questions presented in Texas v. Johnson begin?
  Petitioner's Question
Respondent's Question

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.

How do the Texas v. Johnson briefs refer to the law?
  Petitioner's Question
Respondent's Question

The Facts
    Including the determinative facts of the case renders the question presented concrete and potentially persuasive. But one of the most difficult aspects of drafting the question is deciding which and how many facts to include. With too many facts, the issue can become long and unreadable, with too few, it becomes merely an abstract question of law that conveys none of the life or substance of the dispute before the court. Above all, the question should be easily readable. Excessively long recitations of facts will often defeat this objective. Try to reduce your list of key facts to only the most important. Manage the remaining facts by placing them after the question and legal framework. The first part of the sentence will then provide a context for the facts and render them meaningful and accessible to the reader. (This technique will also enable you to meet the reader's expectations that the subject and verb of the sentence will be together, and that the sentence will be the "story" of whatever shows up first.) If there are many facts to manage, they can be placed in "where" and "when" clauses after the question. Or the facts may be stated as a short introduction to the question. The facts you include in your question should be fairly and accurately presented. They should not be obviously biased or exaggerated.

Re-Read the Questions Presented in Texas v. Johnson. Do they have enough facts?
Too many?
Are the questions easily readable?
Are the facts well located in the question?
Do the facts appear to be biased or exaggerated?

  Petitioner's Question
Respondent's Question

Language and Tone

    The question presented should be persuasive, but should not appear to be overly so. It should subtly suggest the answer you favor. You should avoid hyperbole, sarcasm, and legal conclusions. Subtle persuasion can be achieved by your word choice, fact choice, and juxtaposition. If your question presented is overtly biased to your side, the judge will not take it seriously. Your credibility will be damaged and the taint may carry through to the rest of your brief.


Do the questions in Texas v. Johnson present the proper tone?

  Petitioner's Question
Respondent's Question

Number of Questions

    You should state a question presented for each separate legal issue, but you should avoid too many issues. Be careful not to include multiple issues that ask essentially the same question. An excessive number of issues will reduce the amount of attention the judge pays to any question. One judge wrote, "I have never been able to understand the motives of counsel who raise a great number of issues they must realize the court will decide adversely to them: the few arguable issues raised by them tend to be regarded as non-meritorious by association. It is like shooting with a blunderbuss crammed with eggshell, which will annoy and distract without affecting the outcome."

In Texas v. Johnson, the Petitioner asks one question, and the Respondent asks two? Why? Petitioner's question Respondent's questions
  Petitioner's Question
Respondent's Question

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:

Do the Texas v. Johnson questions presented pass the tests in this checklist?
 

Petitioner's Question
Respondent's Question

  1. Are the issues well chosen: Do they raise reversible error? Are they outcome determinative? Do they avoid diluting strong issues with weak ones?
  2. Are the issues stated concretely?
  3. Are the issues stated clearly? Can the court understand the issues without further reading?
  4. Are the issues stated persuasively? Do the questions suggest their answers without being argumentative?
  5. If changed to a declarative sentence, does each question presented make a clear, sensible holding?

TABLE OF CONTENTS
Click to see table of contents in Petitioner's or Respondent's brief

    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.

Skim through the argument headings in the tables of contents in the Texas v. Johnson briefs, and decide whether you think they provide a coherent outline of the argument.
  Petitioner's Table of Contents
Respondent's Table of Contents

TABLE OF AUTHORITIES
Click to see table of authorities in Petitioner's or Respondent's brief

    The table of authorities, also referred to as the "table of cases," usually appears after the table of contents. The table of authorities lists each case or other authority cited in the brief. The authorities are generally grouped into cases, statutes, rules, and other authorities. Within each group, the authorities must be listed in alphabetical order. Each authority must include the full citation and a cross reference to each page in the brief where the authority is cited.

JURISDICTIONAL STATEMENT
Click to see jursidictional statement in Petitioner's brief

    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.


STATEMENT OF CASE
Click to see statement of case in Petitioner's or Respondent's brief

    The statement of the case generally consists of two parts: an account of the relevant procedural history and a statement of the material facts pertaining to the issues presented for review. (See applicable Supreme Court and Federal Appellate Rules.) The facts portion of this section is arguably the most important part of your brief. It has been said by many appellate judges and advocates that cases are often won or lost on the facts. The court should want to rule in your favor after reading the facts statement.
So you should present an account of the facts that is accurate, complete, compelling, and subtly persuasive.The procedural history portion of the statement of the case can sometimes be a place for persuasion, but in most instances, it will probably be rather dry. For this reason, it is may be better practice to recount the procedural history after the facts, even though some court rules provide to the contrary. Wherever it is placed, it should relate only those procedural events that are relevant to the appeal.

    In some jurisdictions, there are additional requirements for the statement of the case, such as the inclusion of a verbatim statement of the lower court's judgment, identity of the lower court and judge, and jurisdictional basis for review.

Stop for a minute to read the statements of the case in the two briefs. How do the parties in Texas v. Johnson deal with the procedural history?
  Petitioner
Respondent

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:

Some "Rules" for Fact Statements
As you read these "rules" consider whether the Texas v. Johnson briefs adhere to them.
  Petitioner
Respondent

While the primary purpose of the facts is to persuade the court to rule in your favor, you must nonetheless adhere to certain rules. First, and foremost, your facts must be complete and accurate. You may not misrepresent the facts either affirmatively or by omission. The section must include all material facts, both those which favor you and those which favor the other side. You should not leave out any facts that you will be discussing later in your argument.

Your facts should not be over inclusive, though. Don't waste the court's time with irrelevant facts and details that do not advance your theory of the case. And don't include any facts that are outside the record. The judges should find your account of the facts balanced, candid and reliable. If you succeed in that task, it is quite possible that the judge will return frequently to your statement of the facts as the definitive version. Therefore, you should avoid the appearance of bias or overstatement. You may not argue, editorialize, or characterize facts. To do so is to lose credibility immediately. Be sure you know your audience.

Click here to jump to some judge's comments about statements of the case.
As a practical matter, all references to the facts should include a citation to the record. This is required in most court rules , and is assumed if not explicitly stated. The Bluebook sets out the procedures for citation to the rules in Rule P.7. Follow the Bluebook except where they are inconsistent with the applicable court rules pertaining to references to the record.
  -Are the fact statements in Texas v. Johnson balanced?
-Do they appear to be complete and accurate?
-Would the Court find them reliable?
-Do they properly cite to the record?
  Petitioner
Respondent

Techniques for Persuasion

Within the confines of the "rules" for fact statements, there is still plenty of room for persuasion. Here are some techniques should try to employ:
  As you read about these techniques, think about how successful the Texas v. Johnson statements of the case are in employing them.
  Petitioner
Respondent
 

 

Be subtle. Remember that you should maintain an objective tone in your facts. A judge should find your statement of the facts candid and reliable. In persuading, rely on organization, writing, careful selection and juxtaposition of facts and detail, and story telling.

Have a theme. Make sure your statement of the facts always reflects your theory of the case.

Tell a story. Your facts should read like a novel or short story. The story should have a clear beginning, middle and end. Instead of summarizing trial testimony or exhibits in the order in which they were entered, it should focus on the underlying story.

Write about people. Nothing engages a reader like interesting characters and situations. This is just as true in a brief as in a novel or newspaper feature. Identify the parties early in your fact section. Make them come alive. Avoid referring to them by their party names, particularly "appellant" or "appellee."

Organize your facts to maximize persuasion. Find an organizational structure that advances your theory. Often, but not always a chronological organization is effective. But it is often useful to begin even a chronological account with a short introduction that summarizes the key facts, or highlights a particularly explosive fact that favors your side. In other cases, it makes sense to begin with the most important event and fill in the details later. In still other cases, a topical organization is best. This is particularly true where there are multiple parties and transactions that occur simultaneously.

Whatever organization you choose, make it clear to the reader from the outset. If necessary, help the reader with subheadings.

Include details that advance your theory. Details, especially vivid or sensory ones, will help the reader understand, feel and remember your story. Details enable you to show, rather than tell, and allow your reader to reach his or her own conclusions. If you choose the right details and present them effectively, the reader will reach the conclusions you have steered him or her toward.

Emphasize favorable facts. It goes without saying that the facts that favor your side should be emphasized. You can do this by placing favorable facts in prominent locations and by providing details about them. As in any writing, there are certain places in the structure where information receives the greater emphasis. On the section level, the beginning receives the most emphasis, the end the next most, and the middle the least. Try to place the most favorable facts toward the beginning or end of your fact section.

In a sentence, information receives greatest emphasis at the end, the next most at the beginning, and the least in the middle. Information in the main clause receives much more emphasis than what appears in a subordinate clause. Use this knowledge of sentences to choose the place of greatest emphasis for the facts that most favor your theory.

A favorable "fact" may also be one that is missing. This is particularly true when you were the defendant or non-moving party below. You should point out and emphasize any absent facts that favor your side.

De-emphasize unfavorable facts. Even if it were permissible to simply leave out unfavorable facts, it would not be in your client's interest for your to do so. Any important unfavorable fact will undoubtedly appear in your opponent's brief, and its absence from your own will both deprive you of the opportunity to defuse it, and damage your credibility with the court. Therefore you must include unfavorable facts but find ways to de-emphasize them.

Many of the techniques of emphasis work in reverse. Place unfavorable facts in the middle of the section, in the middle of a paragraph, and the middle of a sentence. Hide them in subordinate clauses, particularly those starting with qualifiers (e.g., "Although...."). Render unfavorable facts less memorable and potent by avoiding detail and using more general, abstract language. Use the passive voice. Juxtapose unfavorable facts with other facts that explain or contextualize them. Don't linger over the unfavorable facts: pick up the tempo.

Avoid unimportant or unfavorable detail. While you must include all determinative facts, you need not include all detail. When dealing with unfavorable facts, limit the amount of detail you include. Unimportant detail should also be excluded. Don't overburden the judges with more than they need to know. Edit out detail that is not important or distracting. Any detail you include will be presumptively considered important by the reader. If the ensuing material reveals that presumption to be unfounded, your reader will lose faith in you.

Avoid sarcasm, hyperbole, and argument. A widely respected appellate advocate noted, "[t]he temptation to slip in a sly remark is sometimes pretty strong; let it go into an early draft, if you must, and get what fun you can out of it; but be sure it is out of the final product." This is good advice. Keep your tone serious and objective.

  • Do the facts in Texas v. Johnson tell a story?
  • Do the facts have a theme?
  • Do they use detail effectively?
  • Do they emphasize favorable and deemphasize unfavorable detail?
  • Do they avoid sarcasm, hyperbole, and argument
  Petitioner
Respondent

A checklist for facts:

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

How do you rate the fact statements in the Texas v. Johnson briefs under these criteria?
  Petitioner
Respondent
  • 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:

1 The Honorable Judith S. Kaye
State of New York Court of Appeals
      After 21 years as a litigator and 7 as an appellate judge, I continue to believe that composing the fact statement requires the greatest skills. It is the brief writer's first opportunity to relate the case to the judge, and is never neutral though it must appear scrupulously so. Each fact recited in a brief should advance the legal argument you plan to make; in its totality the fact statement should condition the reader to feel that justice is on your side. Even in a court of law like ours, no judge votes easily against the just result. Above all, your facts must be accurate, correctly portraying and citing the record. It is suicidal to misstate or even oversell the facts; your adversary lives for such opportunities.

2 The Honorable Patricia M. Wald
United States Court of Appeals for the District of Columbia Circuit; Chief Judge 1986-1991
 

    Make the facts tell a story. The facts give the fix; spend time amassing them in a compelling way for your side but do not omit the ones that go the other way. Tackle these uncooperative facts and put them in perspective. (Too many times the judge reading both briefs will not recognize they are about the same case.) If you're appealing, make it seem like a close case, so any legal error will be pivotal. Above all, be accurate on the record; a mistaken citation or an overbroad reading can destroy your credibility vis-à-vis the entire brief. Describe what happened low-key ("Just the facts, ma'am") with no rhetorical or judgmental flourishes -- well done, the facts should make your case by themselves.

3

The court in Hickman v. Fraternal Order of Eagles, Boise No. 115
114 Idaho 545, 546, 758 P.2d 704, 705 n.1 (1988).

      Plaintiffs sued a fraternal order for serving alcohol to a drunk driver who later injured the plaintiffs. On appeal, the plaintiffs failed to mention that, after leaving the order's function and before the accident, the drunk driver consumed nine "whiskey sours" at his sister's home. In its opinion the appellate court chided plaintiffs' attorney as follows:

    We first learned of Davis' drinking subsequent to the Christmas party when reading Respondent's Brief. Counsel for appellant Hickman failed to include these facts in his brief, contrary to Idaho Appellate Rule 35, which requires that appellant give an accurate statement of the facts. Counsel for appellant further failed to provide an adequate transcript of the trial proceeding. Counsel for appellant damages both his credibility and his client's position when he fails to state the facts to this Court with the utmost candor. Hickman v. Fraternal Order of Eagles, Boise No. 115, 114 Idaho 545, 546, 758 P.2d 704, 705 n.1 (1988).

4

Judge Warren Brody
Appellate Division of the Superior Court of New Jersey

      The statement of facts is where I hope to get a picture of what the case is all about. The law is supposed to see to it that people deal fairly with others. What is "fair" is generally what the common law, statutes and regulations try to define, depending upon the facts. Thus the starting point in getting into the issues on appeal is a full understanding of the facts. The appellant has a slight advantage. If I come away from a reading of the appellant's statement of facts with a sense that the judgment was unfair, I am likely to be more receptive to the appellant's legal arguments-at least until I read the respondent's brief. Sometimes the appellant's attorney squanders that advantage with a factual recital that is not only boring but also irrelevant to the legal issues I must decide. For instance, an unstructured summary of the testimony of each witness, aside from being soporific, gives me no clue about what facts are relevant or their relative importance. Blatant omission of facts that "hurt" signal a worthless brief. Aspersions against the opposing party, opposing attorney or the trial judge merely suggest that a fair recital of relevant facts would not help the appellant's cause. Occasionally, the appellant's statement of facts is so distorted, argumentative, uninformative and confusing that I reach for the respondent's brief to find out what the case is all about.

5 Albert Tate, Jr.
Former Associate Justice of the Supreme Court of Louisiana

      The statement of the facts is regarded by many advocates and judges as the most important part of the brief. In the first place, regardless of how much the judge knows about the legal issues beforehand, he does not know the facts until he reads this statement. Second, law and legal principles are designed to produce fair and socially useful results when applied to facts. This fundamental aim of law lurks always in the mind of the judge . . . .
6 Robert H. Jackson
United States Supreme Court
      The purpose of a hearing is that the Court may learn what it does not know, and it knows least about the facts. It may sound paradoxical, but most contentions of law are won or lost on the facts. The facts often incline a judge to one side or the other. A large part of the time of conference is given to discussion of facts, to determine under what rule of law they fall.


SUMMARY OF ARGUMENT
Click to see summary of argument in Petitioner's or Respondent's brief


    Some jurisdictions require or allow that the brief include a summary of the argument. The summary of argument provides a narrative synopsis of the most persuasive parts of the argument. Even though the argument is also presented in skeletal form in the table of contents, it is not overly repetitive to include a summary of the argument. The summary allows the advocate to give the court more detail than is possible in the point headings, and it allows for more subtle connections to be made between the points of the argument.

    Because this is one of the first parts of your brief, be sure to make it as appealing as possible. You should not simply repeat the point headings. In fact, court rules may require that you don't. Because the summary of argument summarizes your argument, it generally is written, at least in final form, after the argument is complete. It should generally follow the same structure as the argument, and should not address matters that are not covered in the full argument. Make the summary long enough to give the court a good sense of your arguments. If you need to, you may cite to some of the leading authorities.

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?
  Petitioner Summary of Argument
Respondent Summary of Argument


ARGUMENT
Click to see argument in Petitioner's or Respondent's brief


    Needless to say, the argument is the heart of the appellate brief. It has been said that in drafting the argument, as well as their entire brief, you must try to put yourself into the shoes of the reader, the judge. You should try to think like a judge. Create an argument that gives the judge what he or she needs: a clear analysis of the applicable law, a logical application of the law to the facts, and a well-organized, well-written presentation that renders the analysis easily accessible.

Organization of the Argument

Selection and ordering of arguments
    Any argument that does not appear in your brief is generally deemed waived. That means you will not be able to raise the argument later in the proceedings. Therefore, you should be sure to include all arguments that you believe have a reasonable chance for success. But don't fall prey to the "kitchen sink" approach to argument. Eliminate the weak arguments; otherwise your strong arguments may be watered down with arguments that have little chance of success. You must closely scrutinize all arguments for judicial "saleability."

    Once you have selected the arguments to be included in the brief, you must determine the order in which they will appear. The general wisdom is that the strongest argument should be presented first. The judge will then read your strongest, most saleable argument when he or she is most attentive, alert, and receptive.

    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?
Footnotes
    Footnotes have proliferated in recent years, and some might say they have grown almost in proportion to the national debt. And, as on that subject, debates about footnotes can become heated. Some judges have sworn off footnotes, but still multi-page footnotes abound. A policy of moderation may be sensible. Use footnotes when necessary, but always question the necessity. Ask yourself whether the material you are putting into a footnote is important enough that it really belongs in the main text. If it is not important enough for the main text, consider whether it is even important enough for a footnote.

    Even after you apply close scrutiny, you may well find that you do have some need for footnotes. Some good uses for footnotes are the following: explanation of abbreviations or background information; internal cross-references; case descriptions; procedural information; response to secondary arguments of the other side.
Scan the briefs to see how footnotes are used.
  Petitioner
Respondent
  • 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?

POINT HEADINGS
Click to see point headings presented in Petitioner's or Respondent's brief


     Each argument section or subsection should begin with an argumentative point heading. The heading states in one sentence the main thrust of the argument to follow. In the heading, the argument is stated with enough detail and specificity for the court to understand the substance of the argument in a single, painless reading. When all of the point headings and subheadings are collected in the table of contents, the reader should
have a clear outline of the brief's arguments.

    Within the argument, the headings should help the reader navigate and select the sections she or he wants to read. One author suggests that advocates think of an argument heading as "an interesting headline that will catch the eye and induce the reader to read further."

    The point headings should be forceful, argumentative, and case-specific. The most egregious error lawyers commit in drafting point headings is to make them topical rather than declarative. For example the writer might employ a heading such as "consideration." Less unfortunate, but still ineffective, are headings which state such a broad proposition that it could be cut and pasted from one brief to another: "The complaint does not state a cause of action." Both the topical heading and generic heading represent a lost opportunity to persuade -- or at least to make the court aware of the substance of the argument.

    Each point heading should be an "independent, complete, and freestanding ground for a ruling in your favor." Subheadings should contain the subsidiary points of the argument. A point heading is "independent" if you could prevail solely by convincing the court of nothing but the argument covered by the point heading. If you need to prove more than one of your planned point headings to win, those points should be converted to subheadings under the umbrella of a single, independent heading.

    Point headings should follow a conventional outline form, starting with the roman number "I". Subheadings should start with "A," and so on. As with outlines, you should not use single subheadings. That is, if you have an "A," you must have a "B." If you don't, either make one, or fold the subheading "A" into the point it supports. If you have only one main point heading, don't use a solo "I." Instead leave it unnumbered and begin your subheadings with "A."

    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 syllogism
s.

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?

CONCLUSION
Click to see conclusion presented in Petitioner's, Respondent's or Reply Brief


    Most court rules require that the brief include a conclusion. Fed. R. App. P. 28(a)(10). The conclusion is a short and usually perfunctory section in which the advocate states precisely the relief that is requested. Some advocates use the conclusion to summarize very briefly the grounds upon which the relief is sought. One author recommends that, "[w]ithout violating the requirement of brevity, it should contain a summary of the essential points of the argument." Another advises that the brief conclude with a "flourish." Others advise against summarizing the arguments and recommend limiting the conclusion to a one-sentence request for relief and an "unamplified identification of the ground on which the relief would be based." This seems to be the more common practice.

Look at the conclusions in the three briefs
:
  Petitioner
Respondent
Reply Brief
  • In the reply brief, the Petitioner is more expansive with its conclusion, is this technique effective?

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