January 2016 Bar Bulletin
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January 2016 Bar Bulletin

Ten Underemphasized Aspects of Appellate Practice

By Erick Reitz


(Second of Three Parts)

This three-part article highlights 10 aspects of appellate practice, which, in my clerkship experience, merit extra thought by practitioners. Last month, I focused on standards of review and next month I will discuss several aspects of the appellate record and oral argument. This month, I address several points on building an effective argument.

Reexamine and Retool

Occasionally my co-clerks and I saw attorneys submit appellate briefs nearly (and sometimes entirely) identical to their briefs before the district court. This is a questionable practice for both sides, but it seems emphatically so for appellants, who are only on appeal because their arguments failed. It makes little sense, in this situation, to thrust forward the same language and authority, expecting a different result. Granted, appeals are generally confined to the arguments raised in the trial court, but the appeal is a chance to reexamine those arguments and refine them to better make your point.

Read the lower court’s decision carefully, not just to criticize or praise it, but also because it demonstrates how the parties’ arguments are understood by a judge. Chances are appellate judges will read the same arguments similarly.

Use this opportunity to think critically about your message and whether you successfully delivered it the first time. Question whether your points, particularly your weak points, might be reframed. And ultimately, refine your writing to cut as clear and direct a path as possible for the appellate court to easily follow.

In doing this, a fresh pair of eyes can go a long way toward catching overlooked subtleties. Whether you are appellant or appellee, your underlying strategy should be to approach the case with a scrutinizing eye and a mind open to retooling.

Write Concisely

When the federal judiciary proposed reducing the word limit for appellate briefs, most commenting judges supported the change, stating appellate briefs are often longer than necessary. But even without a rule change, practitioners would be wise to heed the wishes of their primary audience by finding ways to trim their briefs.

Judicial preferences aside, it is almost always in an advocate’s best interest to keep things relatively short and to the point. Short briefs impress the reader, conveying a certain confidence at the outset, as if to say, “My position is so clearly correct that only a few pages are necessary.” Clear logic is powerful, so a brief that cuts to the chase, focuses on the important points and lays a clear path in plain terms is almost always the stronger for it.

A background section generally should include only what is necessary to present the relevant facts as an understandable story.

When composing an argument, do not try to build it all in one, long sentence. Replace complex, comprehensive statements with shorter, direct ones that each contribute one or two points toward the overall cause. Moreover, each sentence really should add something rather than expressing the same point multiple times with the hope that one iteration will sink in. Make your important points, but do so once, do so clearly the first time and do so without extraneous detail.

Finally, question the merits of each supporting or alternative argument. Unless you are desperate for support, cut the really weak ones. They dilute your message, undermine your credibility and create easy targets for the opposition.

Avoid Overusing
Rhetorical Gimmicks

Strong legal arguments rarely require gimmicks to demonstrate their merit — they compel with legal authority and relentless logic. Focus your effort there, rather than on dramatizing the backstory with irrelevant facts; overstating a trial judge’s simple oversight or reasonable mistake; mischaracterizing opposing arguments; over-using “clever” turns of phrase; and the like.

Too many witty retorts, too many incredulous reactions, too much reliance on emotional sympathy, and your readers will begin rolling their eyes. Clever or impassioned writing can be powerful insofar as it is accurate and on point, but gimmicks tend to avoid central issues, and their overuse is a hallmark of weak arguments. I suggest using such techniques sparingly, lest your readers suspect you of hiding faulty logic behind rhetorical fanfare.

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