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Good briefs critical to successful appeal

By: DIANE SLOMOWITZ//December 1, 2010//

Good briefs critical to successful appeal

By: DIANE SLOMOWITZ//December 1, 2010//

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Most disputes resolve without litigation. Of the few that make it to court, most settle before trial. Of those few that reach judgment, only a small number are appealed. For many attorneys, then, preparing an appellate brief is a rare, if not alien, event.

So why the topic of appellate briefs? Because every lawyer dealing with litigation will eventually be involved in an appeal. And because a good or bad appellate brief can make or break an appeal.

The technical requirements for appellate briefs and appendices are well laid out in Sec. 809.19, Wis. Stats. A useful source for information on the overall appeal process is Michael Heffernan’s “Appellate Practice and Procedure in Wisconsin,” published by the State Bar.

An appellate brief must, at a minimum, comply with the statutes’ technical requirements. But a winning appellate brief must do much, much more. Depending on your client’s position as appellant or respondent, it must viscerally convince the appellate court that the trial court’s judgment should either be reversed or affirmed. And it must do so within the confines of the appropriate appellate standard of review. A few basic tips may make this task seem less daunting.

Make standards of review your friends

Standards of review are, theoretically, simple. A factual finding will not be overturned unless there is no credible evidence to support it. A question of law is reviewed de novo. A discretionary determination will be sustained if the trial court examined the relevant facts, applied a proper legal standard, and, using a rational process, reached a conclusion a reasonable judge could reach.

Many appellate briefs list standards of review in short introductory sections, and then never mention them again. Others don’t acknowledge them at all. These briefs fail to properly focus the appellate argument, and miss opportunities to persuade the appellate court.

One of the hardest tasks of an appellate lawyer is to reasonably fit your appellate issues into those standards of review which best serve your client. If an appellant, can the issue be characterized as a question of law or discretionary determination? If a respondent, is the issue one of fact? Once that is done, string those standards of review throughout your appellate brief.

In challenging a discretionary determination, for example, it isn’t enough to say that the trial court was wrong. The appellate court won’t substitute its judgment for the trial court. Instead, show how a reasonable judge could not have reached the trial court’s conclusion, perhaps because the trial court ignored a critical witness’ testimony, or proceeded with a misunderstanding of what it could legally do. Document how the trial court’s decision-making process was not rational, and what the rational process should have been.

If successful, highlighting the standard of review emphasizes the prism through which the court should review the issue. And that sets the stage for a successful outcome.

“Embrace” negative authority

Don’t give in to temptation and run away from negative authority. The appellate court will find it (led by your opponent), and you will lose your credibility. Besides, if that authority was truly earth shattering, the trial court likely would have already properly applied it, and you wouldn’t be drafting an appellate brief in the first place.

Face the negative authority head on. Succinctly explain why it does not apply. If its facts are distinguishable, lay out the differences, but don’t get into minutiae. A fine line exists between details and droning. Highlight any argument you are making that the negative authority court did not consider. Show how extending the negative holding to your case would disserve its underlying policies. Make any argument you reasonably can. But address it all the same.

Use your appendix

The appellant’s appendix should, of course, contain the judgment, any written decision, and transcripts of oral decisions made from the bench. Under Sec. 809.19, Wis. Stats.’ recent amendments, don’t forget, beginning Jan. 1, to include in an appendix copies of any unpublished opinions cited in the brief.

The appendix is not just a formality. Appellate judges really do use them to refer to parts of the record. Include in the appendix parts of the record that are important to your arguments, and which you want the judges to be able to easily refer as they review your brief.

If your appeal involves a contract, include it in the appendix. If a specific page is critical, include that page as a separate entry. If an instruction is being challenged, include that instruction and, if different, the one given by the court. If the trial court ignored a witness’ important statement, include a reasonable excerpt from that statement or testimony. The time it takes for judges and clerks to search (with frustration) through the record is the time it takes them to lose track of or interest in your argument. The goal is to make it as easy as possible for the appellate court to understand and put your arguments in context.

Be selective, however, and don’t overload the appendix. Section 809.19(2)(a), Wis. Stats. only refers to “limited” parts of the record. Further, including items of lesser importance lessens the impact of the documents you want to highlight.

Check your cites

Okay. This is a technical point. But failing to follow it can have substantive consequences.

Make sure your cited cases are still good authority. Obvious, yes. Occasionally forgotten in the midst of last minute deadlines, embarrassingly also yes.

And make sure your citations are correct. The last thing a judge or clerk needs is to search for a case and not find it because “Wis. 2d” is really “Wis.” or 293 is really 239.

It happens. We’re human. We hope judges remember that, because they’re human too. But the natural inclination will be to question the writer – if he made this mistake, what others has he made? And that is a question we never want asked.

Diane Slomowitz is a shareholder with the law firm of Fox, O’Neill & Shannon, SC in Milwaukee. She concentrates her practice on legal research, legal writing and appellate brief writing for the firm’s business and individual clients. Diane can be reached at 414-273-3939 or [email protected].


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