Appellate Briefs Tag

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Posted 22 Nov 2013 in Tips and Tactics

As a very general rule, arguments in a brief should appear in order of descending power or importance.  A judge may stop reading on reaching a clearly winning argument or on deciding that the opening briefing is so weak as not to justify more time.  Either way, there is no benefit in saving the best for last.  There are a few exceptions: Jurisdictional arguments normally go first, even if they are not the strongest.  If the jurisdictional argument is a winner,...

Posted 13 Nov 2013 in Tips and Tactics

Careful proofing is as important as excellent writing.  Errors and omissions slip into briefs so easily, especially if several people are working on it.  There are many good tips for proofing, all best employed a day or more after the writing is done: Print and proof the document in hard copy; Read the document aloud, forcing yourself to acknowledge each word, or read with your finger pointing at each word; Never try to proof for everything at once—proof the text, then the headings,...

Posted 08 Nov 2013 in Tips and Tactics

There are many citation styles one could use in writing briefs—The Bluebook, The Redbook, the University of Chicago Manual of Legal Citation, the California Style Manual, and so on.  One is not inherently superior to another.  If the court that will consider the brief has a required style, then that ends the matter. The fundamental rules for good citations are a very few: citations must provide everything the reader must know to locate the source; citations need to be simple, easy to understand...

Posted 05 Nov 2013 in Tips and Tactics

Many laws are enacted as a coherent whole and then divided and separated when they are codified.  Part of the statute may be sprinkled into the jurisdiction and procedure code, part into one substantive code and the rest into another.  Additionally, within one code, sections of a single statute may appear widely separated.  Two federal examples: The Chief Financial Officers Act of 1990 appears in the following United States Code titles: 5, 31, 38 and 42. The Child Abuse, Domestic Violence, Adoption...

Posted 28 Oct 2013 in Tips and Tactics

If things did not go so well in the trial court, an attorney may want to return to the books for more research for the appellate briefing.  In cases involving statutory issues, there may be relevant law that has not been codified that may make the difference.

It’s easy to assume that the code book in your hand or the sections that appear initially on the computer screen contain all the laws.  Not so.  Legislatures enact many laws that are not codified at all or are codified only in part.  Common examples include:

Posted 23 Oct 2013 in Tips and Tactics
Consider whether you are really done.  Have you answered the question(s) that were asked?  All the questions?  Are all the factual and procedural statements supported by citations to the exhibits?  Are there any omitted evidentiary points that may benefit your client as to burden of proof or presumptions in favor of your client or against your adversary?NYcourt Then follow these steps in the order that makes sense based on the nature of the brief and your work: One time, proofread just the headings or captions.  Cut and paste the headings into a separate document.  Read them apart from the brief.  Do they make sense? Are the captions parallel in structure and tense so that they flow pleasingly? Should you add subheadings to assist the reader or make other adjustments? Is there a step skipped over in the reasoning?

Posted 10 Oct 2013 in Tips and Tactics
In the “olden days,” as recently as the 1970s, briefs had to be written by hand or dictated, then typed on a typewriter.  An omission or error often meant having to retype the entire page.  The computer can be used simply as a fancy typewriter, but writing on the computer is fundamentally different in kind as well as in quality. The following comments assume the writer starts with the appellate record or an opening or opposition brief on appeal and is required to produce an opening, opposition or reply brief:

Posted 25 Sep 2013 in IMLA Briefs
When is it appropriate for a federal court to decide a case that is pending in state court?Supreme Court On the Supreme Court’s docket is a case that addresses this very issue, giving the Court the chance to once again ponder the limits of the Younger abstention doctrine. That case, on appeal from the Eighth Circuit, is Sprint Communs. Co., L.P. v. Jacobs, Case No. 12-815. At issue is whether Younger abstention applies only when the underlying state proceeding is “coercive” or whether it is sometimes appropriate for federal courts to abstain from hearing cases that are “remedial” in nature.  Many cases dealing with Younger abstention have turned on that distinction. But the difference between “coercive” and “remedial” proceedings, and the way courts classify cases as one or the other, is anything but clear-cut.  Indeed, the distinction could turn on whether the government or a private party initiated the action, as “coercive” proceedings are typically described as those that are criminal or quasi-criminal in nature.

Posted 16 Sep 2013 in Tips and Tactics

Many brief writers mistakenly think of the table of contents as a nuisance that their secretaries must complete before briefs are finished. This fundamental error can profoundly affect the quality of their documents. Once a significant part of a document has been prepared, and often when a discrete segment is completed, the author should pull the table of contents that then exists to study. That table may reveal a missing argument to be added, an editorial adjustment to be made in...

Posted 19 Aug 2013 in Roundup
Some fun items about the Supreme Court. (1) The Supreme Court’s Best Writer Legal-writing guru Ross Guberman recently guest blogged at the Volokh Conspiracy. He’s the author of Point Made, which dissects appellate briefs from leading attorneys. He turned his attention to the Supreme Court’s best writers. Here’s his case for Chief Justice Roberts. And here’s his case for Justice Kagan. They’re both great picks.