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The Summary Follows the Argument
Experienced brief writers know that the summary of argument is usually written after the argument itself. The summary ordinarily should have the same structure as the argument. In our experience， the structure of the argument tends to evolve over the course of drafting and editing. Writing out a summary before writing the argument may serve the same useful function as preparing an organizing outline， but a summary written in advance rarely will be phrased and organized as well as one written after thinking through all the ideas that come up during drafting.
Often， you may wish to begin with some background or table-setting that will not be repeated in the argument section and therefore is not， strictly speaking， a “summary” of any part of the argument. In such instances， it is perfectly legitimate to combine the summary of argument with an introduction， as long as the combination of “introduction and summary of argument” is so labeled and does not cause the section to be too long （more than four or five pages）
Supreme Court Rule 24.1（h） cautions that “[a] mere repetition of the headings under which the argument is arranged is not [a] sufficient” summary of argument. The same caution surely holds true in every court that requires a summary. But it is equally important to remember that the argument headings themselves will also serve a summarizing function. Some readers of appellate briefs do skip over the table of contents and table of authorities when they first pick up a brief， but many do not， and virtually all return to the table of contents at some point when they try to understand the structure of a brief. Thus， you should pay attention to the argument headings so that when they are plucked out from the text and stand on their own， they will comprehensively， comprehensibly， and （within limits） persuasively state the party‘s position.
Ironically， the most critical section of the brief — the argument itself — is least subject to general rules or advice. There are two primary determinants of the quality of the argument section of a brief： （1） the quality of the arguments available and （2） the analytical and writing skills of the lawyers involved. Nevertheless， some aspects of writing an argument are specific to the appellate process.
Organization Above All
First， never forget the importance of organization. It is vital to organize， not only the writing， but also the theory of the case. Appellate judges know that they are setting precedents. They therefore worry about whether the theory they adopt in one case will or will not apply appropriately to slightly different sets of facts. Appellate lawyers should assist the judges by having — and expressing — clear theories with reasonably clear limits.
Unfortunately， many appellate briefs are organized in ways that do not advance an overall theory. One common but particularly unsatisfactory form of appellate brief （whatever its merit in a trial court） is to quote snippets from one precedent after another without fitting those precedents into an overall pattern. Such filings are long on cut-and-paste， but short on logic or explanation. Likewise， it is tempting （but equally ineffective） to use a brief to take a series of potshots at the opinion below （in an appellant‘s brief） or the adversary’s brief （in an appellee‘s brief or a reply brief）， never bothering to devise an overall theory of the correct approach to the case. And it bears repeating that ad hominem criticisms of adversaries or the decisionmakers below — as opposed to their legal positions — are counterproductive.
It also is desirable to explain the client‘s position in a way that makes sense from a policy （or common sense） perspective. Judges are concerned about both the institutional and the real-world consequences of the rules they adopt. Relatively few cases that reach appellate courts are controlled so squarely by precedent that the judges have no wiggle room. Accordingly， even if favorable precedent is available and you intend to rely heavily on it， write the argument in a way that gives the judges confidence that they should follow that precedent. That is far better than baldly telling them that they must follow it — and daring them to disagree.
But be careful about policy forays. You cannot just make up the law. Most appellate judges are offended by briefs that are merely naked policy arguments and that pay no attention to such familiar judicial guideposts as case law， statutory language， and （for most judges） legislative history.
Statutory language can be especially important. More than once we have edited draft briefs that contained dozens of pages of material before ever quoting the actual language of the statute being construed. That is always a mistake in a true statutory construction case — one in which the court is called on to determine the meaning of statutory language， rather than construe precedents that have infused meaning into broad statutory generalities （such as those of the Sherman Act）
If statutory language makes your position difficult， do not hide the statute at the back of your brief. The court will see such placement as a tacit admission that the statute cannot be construed your way. The judges may think you want the court to ignore the statute. If the statutory language is favorable， you have done your client even more of a disservice by not beginning with that and telling the judges that Congress has made all necessary policy choices. Judge Kozinski， in his advice on how to lose an appeal， has written： “[S]tart out by discussing policy. . . . [I]nstead of talking about what Congress did， talk about what it should have done.”
An important tactical question that often confronts the drafter of an appellant‘s opening brief is the extent to which the brief should provide responses， then and there， to arguments the other side may make in its brief. Should the rejoinders be saved for the reply brief instead？ Remember， anticipating arguments entails some risk， especially if opposing counsel are weak； you may put ideas into their heads that they would not otherwise discover or articulate coherently. In general， however， an appellate brief that tries to hide from the adversary’s best arguments is less effective than one that confronts them. And， when the point has already been made by the trial court or argued by your adversary at earlier stages of the proceeding， you cannot expect to hide. You will almost surely want to address such hard points in the opening brief， stating the issue in your terms rather than letting your opponent set the agenda.
Content is not everything， of course. Writing also matters in an appellate brief and in the argument section especially. The point is not that judges consciously grade style or decide appeals based on which brief they think is better written. Rather， it is that judges must understand and remember your position before they can agree with it — and a stylish brief usually is more understandable and memorable.
Appellate judges are busy people. Judge Kozinski estimates that he must read 3500 pages of briefs a month. There is not always sufficient time for a judge to untangle convoluted sentences or dense prose. In addition， typographical and grammatical errors can distract from more important matters. And， if it is possible to write the brief in a lively fashion — without making the writing style itself a distraction — the reader is likelier to comprehend and remember it.
Here again， heated rhetoric and overstatement are harmful. Perhaps the most common flaw in appellate briefs is writing in emphatic， unequivocal， and conclusory terms. Such briefs， overconfident， even cocky， in tone and uninformative in content， are likely to obscure what the judges must really decide and what analytical steps are needed to reach a sound decision — especially if the weakness in the argument has been glossed over in an effort to make the position seem stronger than it is. This is not only unhelpful to the court， but injurious to the advocate‘s own cause. It is far better to confront the issues coolly， honestly， and logically， guiding the reader lucidly down a path that leads to victory.
Tone matters too. In a recent， highly publicized criminal case， appellate counsel did a masterful job of identifying the issues and mustering legal and factual support for his client‘s position. He did so， however， in a self-righteous tone， overstating accusations of prosecutorial misconduct， belittling the trial judge， and portraying his client as the victim of a person who， the jury had found， was herself the victim of the client’s serious criminal conduct.