GUIDE TO APPELLATE BRIEFS
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.
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.
|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:|
WRITING THE BRIEF
to see questions presented in Petitioner's
or Respondent's brief |
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.
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.
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?
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?
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?
Are the questions easily readable?
Are the facts well located in the question?
Do the facts appear to be biased or exaggerated?
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?
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
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?
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.
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.
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.
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?
with Court Rules:
Writing the Facts:Some "Rules" for Fact Statements
As you read these "rules" consider whether the Texas v. Johnson briefs adhere to them.
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.
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:
checklist for facts:
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.
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.
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.
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.
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
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.
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.
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:
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
Carefully examine the point headings in the briefs:
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: