A Few Tips on Effective Briefs

2002

By Thomas J. Carey, Jr.

1) In filing briefs and legal memorandums, you should be completely candid, totally forthcoming, and absolutely honest with the Court. Always. The Solicitor General’s Office, which represents the federal government in cases before the United States Supreme Court, has developed enormous credibility and prestige as a result of its longstanding practice of providing the Court with the utmost professional assistance and absolute candor in every case. You should likewise strive to earn the trust and confidence of each court in which you appear. This is a constant, career-long process. Just as a balloon explodes from a single pinprick, a reputation built case by case over many years can be destroyed in an instant.

Any lapse of integrity also exposes you to the modern judicial equivalent of the colonial stockade: a published opinion with a withering castigation of counsel. See Commonwealth v. Jackson, Mass. , 89 (2000) (Spina, J.): "It may seem confusing at first that the defendant would cite the authority that stands precisely for the opposite of the proposition he advances, until it is revealed that he included only a portion of the quoted sentence in his brief. He omitted everything after the last comma, and thereby blatantly distorted the meaning of the material he quoted." Ouch!

2) Revise and rewrite, again and again. Since it frequently took Justice Brandeis or Judge Learned Hand over a dozen drafts to produce an opinion, you should not be surprised if your draft brief ends up in need of minor surgery or, more likely, a series of major operations. The virtues of clarity and brevity reign supreme in briefs. For most of us, these virtues appear in our writing only after extensive revision. When you think you are finished, try to set the brief aside for a couple of days and come back to it with a fresh eye. You will be better able to evaluate it and see flaws that still need correction.

3) Leave enough time at the end for careful proofreading. First impressions count. You cannot gain the court’s confidence with a brief filled with typographical errors, grammatical mistakes, and inaccurate citations. Sloppiness in these matters makes the court wonder whether you are sloppy in your thinking as well.

4) Do not rely on a computer to proofread for you. A recent daily edition of the New York Times had "libel" for liable and "again" instead of against. Lawyers Weekly discovered that the computer spell-checker could not determine whether a case held a statute constitutional, unconstitutional, not constitutional, or not unconstitutional. They released an electronic bulletin to all their customers misstating the outcome of the case and then had to send a corrected version. Many mistakes slip by the computer that a human would never miss. These mistakes stand out and make you look lazy and unprofessional. Every written document should be proofread carefully before it leaves a lawyer’s office, particularly a brief submitted in court.

5) Like poetry, a brief should follow the prescribed format. Be creative in content, but give your readers the format they expect. Counsel are responsible for filing briefs that comply in all respects with the Court rules. See Mass. R. App. P., Rule 16; Fed. R. App. P., Rule 28; 1st Cir. Internal Operating Procedures, VI; Mass. Superior Ct. Rules 9 & 9A. Read the court rules and follow them. If you are unclear about what the rules require, and your own research has been futile, ask the Clerk. Once you know what the Court requires, just do it. As in the old Army adage, there is "a right way, a wrong way, and the Court’s way." The place to dissent or argue about the format is a rules committee, not the front desk in the clerk’s office at 4:30 p. m. on the day the brief is due NFE ("No Further Enlargements").

6) Today most appellate briefs are reproduced in house or at a copy center so you are responsible for the form of the brief as well as its content. Briefs get tossed back to counsel over page limits, type size, and every picky thing imaginable. Getting a notice that the court has rejected your brief is embarrassing, so take the time and care to file a brief that meets professional standards. You must provide a clear black image on white paper, 8 x 11, 5 inch line of text, double spaced, courier typeface, monospaced, 12 point size or larger, no more than 10.5 characters per inch, pages to be bound securely on the left, with color coordinated covers, etc., etc., ad nauseam. See Mass. R. A. P., Rule 20; Fed. R. App. P., Rule 32. Some of these rules have a reason. The court’s fetish over type size seems silly, but will make more sense to you when you too are old and decrepit and your eyesight starts to fail. Others are simply rules of the road, like driving on the right. The state appellate courts accept (and encourage) printing on both sides of the page, but not the First Circuit. Not to be outdone by the Homeland Security crowd, the federal appeals courts are introducing a new color in December: the covers of supplemental briefs must be tan.

7) Page limits are perceived differently by a judge inundated by a heavy caseload and an attorney whose client has one case before the court of overwhelming personal importance. Keep in mind that you do not have to use the maximum number of pages allowed; shorter is better. If you really need more than fifty pages to argue a case on appeal, you can file a motion. Try not to do so unless absolutely necessary.

8) Good legal writing must first be good writing. Strunk and White’s, The Elements Of Style is an invaluable guide to good writing. Bryan A. Garner’s, The Elements Of Legal Style is an extraordinarily valuable guide to good legal writing. But it is basically an application of the general principles of good writing to the specific subject of law. One of our appellate justices, when traveling incognito, responds to the inevitable job question by saying, "I work for the state as a technical writer." Modest, but true.

9) Although some legal writing is good, much of it is not. The more broadly you read outside the law, the better the writers you read, the better legal writer you will become. When you come across good legal writing, pay attention to why it works. Justice Kaplan is an elegant and eloquent writer whose opinions have a distinctive clarity and force. Read them with care for their style as well as their holdings. Justice Kass has a distinctive style, difficult to emulate. Justice Quirico wrote opinions with narrow holdings and careful attention to precedent. Former Supreme Judicial Court Chief Justice Herbert Wilkins produced a strong body of work without a particularly flashy style; the issue of the MBA’s Law Review published upon his retirement reflects on his work. Gerald Gunther’s biography of Learned Hand shows what enormous effort went into the legal writing of the judge many consider the greatest judge of the Twentieth Century.

Many appellate briefs are now available online through Lawyers Weekly. Read the good ones. Get the briefs of counsel who know how to write effectively and study them.

10) The principles that govern effective appellate briefs likewise apply to trial briefs. Argue the merits of the case not the personality or conduct of the lawyers. Think your case through. Be intellectually honest. Anticipate the Court’s concerns. Get to the point. Be clear. Be concise. Write persuasively. Tell the Court precisely what remedy you seek.

11) Using Mass. R. A. P. 16 as an outline, these tips relate to specific sections of the brief.

Corporate Disclosure Statements. As of September 3, 2002, the state courts will join the federal courts in requiring a Corporate Disclosure Statement, which must be inserted in the appellate brief before the Table of Contents (and, presumably, will not count toward the page limit so do not number it). See the new Supreme Judicial Court Rule 1:21 (Adopted by Order of June 26, 2002), 30 MLW 5284, applicable to both trial and appellate courts.

Table Of Contents. The Table Of Contents tends to be written last and therefore suffers the most from deadline pressure. Yet it is the first section of the brief and in this prominent position can make a critical first impression on the judge. At least one Supreme Judicial Court Justice has said that it is the first thing she reads. Ideally, the headings should be an effective outline and summary of the brief. The TOC should demonstrate sound organization of the arguments. A good TOC is helpful in trial briefs as well. Do what you can to help the judge navigate your brief.

Table Of Authorities. The Table Of Authorities enables a judge to turn immediately to the pages of your brief discussing a particular case. It is an important and timesaving cross-reference when reading the briefs and while writing the opinion. With the latest technology a TOA is fairly easy to assemble and can be helpful in trial briefs. It is usually assembled last. Take the opportunity to check the form and accuracy of each citation. Make any necessary corrections in the table and the text. Do a final rundown of each authority to be sure it is still good law and review the latest citations to it.

Issue Presented. The Issue Presented is page one of your brief. Except for the facts, it is the most important section of the brief. The first question in every judge’s mind upon picking up the briefs in a case is, "What do I have to decide?" Be precise in formulating the legal issue. The depth of your analysis is best reflected in the quality of your statement of the issue. In many cases, the definition of the issue ordains the result. In all cases, it frames the argument. Give it careful thought.

Statement of the Case. The Statement of the Case first describes the pertinent procedural history of the case and then the facts. The idea is to give the judge a preliminary sense of how the case got there and what must be decided. Is it a challenge to the sufficiency of the evidence to support a jury verdict? Was the complaint dismissed for failure to state a claim upon which relief can be granted? The Appellant should demonstrate that the issue presented was properly raised below and that a timely notice of appeal was filed.

Statement Of Facts. The Statement Of Facts is usually the most important section of the brief. Tell the story of the case. Document each fact with a record reference. Save the argument for later.

Summary of the Argument. A Summary of the Argument is required in briefs containing more than 24 pages of argument. If you ever wondered about the attention span of judges, now you know.

The Argument. (Including Standard of Review) Every brief you file should address the standard of review. On a pure question of law, the appellate court makes its own de novo determination of what the rule of law should be. Abuse of discretion is a standard that defers to the trial judge’s decision to some extent. Substantial risk of a miscarriage of justice is a standard that makes the lottery’s odds look good. Always address what standard of review the court should apply. If different standards apply to different arguments, make that clear.

The Argument section of the brief is where you bring to bear your skills in legal reasoning. The great complexity of our society is reflected in the nearly infinite variety of legal arguments that can be made. Become a scholar and a philosopher. Think deeply about where your case fits in the pantheon of the law.

Study how judges decide cases and tailor your arguments accordingly. Former Chief Justice Edward F. Hennessey’s two slim volumes are useful primers for thinking about how judges make law and decide cases. (Judges Making Law and Excellent Judges, available at MCLE). Frank Coffin, the former Chief Judge of the First Circuit, has written perceptively about how appellate courts work and the role of counsel in his book, On Appeal. Hart and Sacks’s great teaching materials, The Legal Process (Foundation Press), illuminate the role of the lawyer in our legal system and the work of courts, legislators, and administrative agencies.

The Conclusion. Be specific about the relief you want. Consider relief in the alternative. Make sure the relief you seek is supported by the arguments you made.

Addenda. Help your reader. Reproduce the text of statutes and regulations. If the court below wrote an opinion, include it here as well as in the Appendix. Would a chalk help in understanding the facts? Put it in an addendum. Is legislative history important? Provide it to the Court in an Addendum. Use common sense and think about what would make the court’s task easier.

12) The most comprehensive reference work on appellate briefs in Massachusetts is MCLE’s two volume set, edited by Ashley Brown Ahearn, Clerk of the Appeals Court, entitled Appellate Practice in Massachusetts. For practice before the United States Supreme Court, the best reference is Stern and Gressman’s, Supreme Court Practice now in its eighth edition from Bureau of National Affairs.

13) Whenever you sit down to write, it is useful to have by your side or on your hard disk the following:

A good Dictionary;

A good Thesaurus;

Strunk and White, The Elements Of Style;

Fowler’s, Modern English Usage (preferably the second edition;

Black’s, Law Dictionary;

Garner, The Elements Of Legal Style;

The Bluebook for citation forms; and

The SJC style manual (available on its website).

14) Finally, while we hope that each brief will be a masterpiece, and we labor mightily in the endeavor to produce such a brief, the available time seldom permits perfection. Never forget the overriding first principle for lawyer’s briefs: file the damn thing. See In the Matter of Richard D. ABBOTT, SJC-08649 (Aug. 1, 2002) (Cordy, J.) (two and one-half year suspension for lawyer who failed to file brief and tried to cover up).