When laying out your appellate case, keep it ‘brief’

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It would be called a “long” if that’s what judges wanted. Instead, it’s called a “brief.”

Barbara J. Janaszek, chairperson of the State Bar’s Appellate Practice Section, explains, “I operate with one overriding assumption, and that’s who my audience is: busy appellate judges with a heavy docket, who probably will review my brief only once. That translates into making sure that every single thing in that brief is clear, concise and understandable.”

On a related note, Janaszek, of Whyte Hirschboeck Dudek S.C. in Milwaukee, adds, “I always put my strongest arguments first, while the judges are the most interested, compared to how they might feel on page 40.”

You brief is generally the first impression the judges will have about your case and arguments, and about you as a lawyer, says Donald J. Wall, the Appellate Practice Section’s immediate past-chair, and a staff attorney with the Seventh Circuit Court of Appeals. “A sloppy brief — one that contains grammatical and typographical errors — reflects on the kind of lawyer that you are.

Know Your Reader

“Know who your reader is; the brief will be read by a number of judges and their law clerks, not a jury.”

Knowing the audience can even mean tailoring your brief to individuals.

Susan M. Tyndall, of the CMT Legal Group Ltd. in Waukesha, says she approaches a brief to Judge Ralph Adam Fine in District I of the Wisconsin Court of Appeals very differently than she does for Judge Paul Lundsten in District IV. The central difference is that Fine places great importance on the statement of facts, whereas Lundsten emphasizes the law. (Both will be speaking at the Appellate Practice Section’s program at the upcoming State Bar convention, notes Tyndall.)

About those facts: Tyndall says to make them “sing.” Bring out the human element of the case. “Do the facts cry out? Do they suggest some kind of injustice? It’s not unprofessional to let your facts read in an interesting manner. It doesn’t just need to be a chronological list of events.”

Avoid Hyperbole

But, by the same token, avoid hyperbole and incivility in the facts section and throughout, advises Joseph N. Ehmann, of the Appellate Division of the Office of the State Public Defender in Madison.

“Your credibility is critical and fragile. A brief that exaggerates or imprecisely states facts or points of law will more quickly turn a court off than just about anything,” he states.

Then there’s the standard of review. “It’s one of the first things in a brief, and it sets the playing field for the court,” says Steven J. Berryman, of Quarles & Brady LLP in Milwaukee.

“It’s huge to know the difference between ‘abuse of discretion’ and ‘de novo review.’”

Wordiness is to be shunned, adds Tyndall. You can write, “It is not uncommon,” or you can write, “It’s common.” One phrasing is four words; the other is two.

Likewise, avoid run-on sentences. Ehmann says that he clerked for an appellate judge who required him to justify exceeding 25 words in any sentence of draft opinions he was assigned.

Enlist an Editor

The best way to eliminate the excess is via an editor, according to Ehmann. That editor need not be a lawyer: “In fact, since one aspect of good legal writing is that it be comprehensible by any reasonably intelligent reader, an editor who is not a lawyer can make a valuable contribution.” Moreover, a nonlawyer editor will identify needless “legalese.”

Along these lines, Wall recommends avoiding technical jargon if possible. There’s nothing wrong with using specialized vocabulary in your briefs, but you must remember that appellate judges are generalists. Many judges have limited knowledge of specialized fields, so you should choose your words with that in mind.

“Directness, conciseness and clarity count a lot, Wall says. “Judges do not want to have to re-read passages that are less than clear. Remember, you do not have to use all the words or pages that the rules permit — but, make sure your arguments are fully developed, to avoid waiver of the issue.”

Ehmann further advises suppressing any instinct to make your brief “stand out” through use of creative organization or rhetorical flourishes. He states, “Being cute or clever is counter-productive. Given the general low level or bad quality of writing judges claim they routinely encounter, submitting a brief that is clear, precise, concise and persuasive is all that need be done to stand out above the crowd.”

For her part, Wisconsin Supreme Court Chief Justice Shirley S. Abrahamson agrees with all of the above — adding, “My acid test for a good brief is that a judge should be able to write an opinion based on it. You conveyed the issue; you answered it; and you answered the arguments of the opposing side.”

But wait! One final, technical, but critical tip from Tyndall.

Be sure that, if you staple your briefs, the staples are flattened or taped over, as the clerks will reject them if sharp staples are protruding. “A practical pointer, but one which can save a practitioner from the sudden heart palpitations that ensue when the clerk calls to say that your brief is rejected.”