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In theory， every law school graduate should know something about how to write an effective appellate brief. After all， first-year legal writing classes in law school often concentrate on that skill. Moot court competitions do too. Compared to other kinds of legal work， appellate briefs seem tidy and self-contained， with a predictable structure. So they are what law schools teach.
Once in practice， regardless of law school background， trial lawyers sometimes seem to believe that no special talent or training is needed to write a good brief on appeal. The idea appears to be that what works before a jury or is acceptable to a busy trial judge should be more than adequate for an appellate court.
Despite what law students should learn and despite what lawyers think they know， appeal after appeal is lost， or at least made harder to win， because of ineffective briefs. Why？ In part， because many lawyers write appellate briefs infrequently. When they do have to brief an appeal， they fail to appreciate that the job is different from much other lawyering. It poses special problems， but presents special opportunities， for advocacy.
The most common mistake made by trial lawyers is to think that they should do the same thing in the appellate court that they did in trial court. They write their jury speech and call it a brief. At best， they address the appellate judges as they would address the trial judge. At worst， they treat the appellate judges like jurors.
Such advocates bog down in irrelevant detail and empty rhetoric. Ninth Circuit Judge Alex Kozinski‘s comments about oral argument apply even more forcefully to the brief： “When a lawyer resorts to a jury argument on appeal， you can see the judges sit back and give a big sigh of relief. . . . [W]e know， and you know we know， that your case doesn’t amount to a hill of beans， so we can go back there in the conference room and flush it with an unpublished disposition.”
Even those who understand that a court of appeals is different from a trial court often fail to seize the opportunities for advocacy that an appellate brief offers. They may recall their early law school lessons， but they do not know and do not take （or do not have） the time to study the more sophisticated lessons that actual experience in appellate practice can bring. Their written product is formulaic. It fails to take advantage of the flexibility that an appellate brief writer has in packaging arguments to meet the needs of a particular case.
Packaging Arguments
Here is what we mean by effective packaging： A few years ago， the Supreme Court considered a case that turned on the interpretation of two complex， interrelated statutes. One statute involved regulation by the FDA， and the other involved patent law. Conventional law school wisdom would have called for the brief to begin with a statement of the events giving rise to the controversy， followed by a description of the proceedings below. The winning brief did not do that. Instead， it opened with a four-page description of the statutory scheme. Not one sentence on those four pages was argumentative or even disputable. The passage alerted the Court to the statutory elements that the brief writers knew were most significant and helpful to their side. It gave the Court a framework to understand everything else the brief said — from the statement of facts through the conclusion of the argument.
Ultimately， the Court ruled in favor of the side that had taken the unconventional approach， saying that it found ‘ “the structure of the [statute] taken as a whole” ’ to be dispositive. The critical information the Court needed to rule as it did was in those first four pages. Of course， this technique is not right for every appeal （although it probably makes sense more often than not in cases turning solely on statutory construction） But it is one way an advocate can achieve maximum effectiveness while staying within the rules.
Note that we have referred to “staying within the rules.” That is important. The rules are the first thing any lawyer must consider before putting pen to paper — or fingers to keyboard.
A surprising number of prominent litigators fail to read， understand， and follow the rules that govern appeals. A noted constitutional lawyer recently got egg on his face when the D.C. Circuit rejected one of his briefs because it “evaded” the court‘s page limits by having too many long footnotes. The Seventh Circuit frequently writes tart opinions about such behavior.
Judges can express their disapprobation of noncompliant counsel in even more emphatic ways. Many years before he became a Supreme Court Justice， John Marshall Harlan briefed an appeal to the Second Circuit. His brief was too long， but the clerk‘s office did not reject it. When Harlan’s senior colleague， Emory Buckner， stood up to present oral argument on the appointed day， Judge Learned Hand demanded to know who wrote the brief. Buckner said that he himself had merely “put [his] name on it”； he complimented his junior colleague as the author.
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