Observations For Law Students on Appellate Brief
Writing in California Courts by B. E. Witkin
Roger J. Traynor Past WinnersWitkin on Brief Writing

Preliminary Note:

The time and occasion, and my assignment, do not call for a full discussion of this subject, which could consume the whole of several evenings instead of the tail end of a talk on law books and legal research. I assume, moreover, that as part of your class instruction you have a basic understanding of the purpose of an appellate brief and its general form; and that you have access in your library and in the appellate court clerks' offices nearby, to plenty of illustrative material. I propose to discuss a few of the highlights of this subject, and to answer any questions which occur to you, either from my comments or from some of your own frustrations in attempting to create models of this great forensic masterpiece which influences judges and wins cases.   My remarks are under two headings – Mechanics and Style.

Mechanics:

Some of the best appellate lawyers that I know are pretty weak on organization, and their briefs, though effective, are inefficiently prepared with a great deal of wasted time and material. I have always urged lawyers and students to follow accepted debate practice: Analyze your case carefully at the outset; set forth in draft every point that you wish to make on your appeal; examine the points and separate the factual from the legal propositions; determine which are main headings and which are subordinate; determine whether several scattered points of similar character can be combined for a stronger main point with subdivisions (e.g., several errors in admission or exclusion of evidence, or in instructions; several constitutional defects).

Then write in draft form your tentative outline, phrasing each main point and each subordinate point in as careful, precise language as you can. You can phrase them in question form or in the form of affirmative propositions; I think you will find affirmative propositions are likely to be the most useful for headings, and the question form can be used in the text where it may have telling effect or arouse interest and attention.

Now you ask, how can we make a complete Outline of the brief before we have concluded our research and discovered all the points and all the supporting law? Isn't it better to do all the research first with an open mind, noting down each point in connection with the case or textbook to which it applies? There are two answers to this, in my opinion:

One is that you cannot do effective research without knowing what you are looking for; and the tentative Outline, made up as a result of your general knowledge of law and your capacity to analyze legal problems, will help enormously in guiding your research into the right places, and in identifying and classifying the research material (noting the points to which they refer) as they are uncovered.

The second is that your mind is still open, because the Outline is tentative. As your research progresses and you discover new points or new variations or subdivisions of old points, and as you find that old points are duds and should be rejected or radically revised, you do it right then, revising your tentative Outline and keeping the Draft of it up to date.

I might add that I find it useful at this preliminary Outline stage to take a very quick survey of the law in a textbook or encyclopedia – not digesting or reading cases, but just picking up the main principles, unsettled problems and probable lines of research – just a couple of hours while putting the tentative Outline together.

Now, with this tentative Outline, you proceed along your normal methods of research, into encyclopedias, textbooks, law reviews, annotated case systems, and digests, reading cases and briefing them, excerpting form textbooks and other sources, and always identifying the notes you take with the Outline point number or letter. This makes it possible to sort them quickly, and to handle them efficiently at the writing stage. Thus, when you come to main Point I, you have perhaps 10 or 20 cards or pages of notes, instead of the whole mass of 100 or more.

I need hardly add that in note-taking you should be extremely accurate in spelling and citations of cases and textbook references; that quotations or discussion should be pinpointed to the precise page where they occur.

Style:

Lawyers and students often ask me, what does an appellate court want in a brief, or what does the California Supreme Court want in a brief? They are serious and concerned; they ask for bread and I give them a stone; but this is not as unkind as it sounds, for the stone is a gem of great value forensically and psychologically. It is this:

An "appellate court" does not want any particular kind of brief or any particular kind of briefing style. The justices of appellate courts are former lawyers whose training and methods of reading and writing and research are as varied as those of the lawyers who are not on the bench. There are short, pungent and concise writers, longwinded writers, pedestrian writers, colorful writers, humorous writers, emotional writers, on the bench and in the offices preparing briefs; and the briefs on file will furnish examples of all kinds. So as an appellate lawyer your writing style is likely to be your usual writing style, and there is no need to change it to meet some imagined requirement of a hypothetical appellate court.

However, without changing your style, that are many things you can think about in preparing a brief, which have, in the experience of appellate lawyers, been successful in gaining support for your side of the case. Here are a few:

Absolute accuracy of citation, quotation and fact-briefing. There are hidden penalties for misleading an appellate court, even though the court does not resort to open censure: Your case is greatly damaged by the thought that the rest is as bad as the misstated part, and your opponent can take strong psychological advantage of it. Moreover, an appellate lawyer expects to handle more than one appeal in most appellate courts, and his reputation for inaccuracy will plague him in cases to come.

Candor and fairness. There are combative trial lawyers whose briefs are violently partisan, and so extravagant in their contentions and assertions as to irritate a court trying to find a solution to the problem. It is much better to state problems honestly, indicate contrary authorities and answer them, and to avoid, broad, sweeping generalizations either of fact or law which cannot be fully supported by the record or the authorities. This does not mean that the brief should be a weak, spineless impartial presentation; it should be a strong argument, but its strength should lie in well supported propositions and not in loose talk.

Concise and clear. Whether your style is a severely academic as Williston's or as colorful as Prosser's, try to say what you have to say in language which is understood at first reading, and which avoids repetitive restatement of the same thought.

Grammar and Punctuation. I have seen Moot Court Briefs which were obviously not read after typing – full of mistakes in spelling, grammar and punctuation. This is something to be avoided always; and the way to avoid it is to read over the whole damn thing before you file it.

The handling of cases. An appellate court dislikes extra work as much as you do; hence a brief which cites in miscellaneous form 200-300 cases and other authorities is a pain in the neck. The same is true of repetitive longwinded quotations from opinions, where the quotes are not in any particularly significant style. The court must eventually write an opinion, and usually relies heavily on the briefs; try to write your brief in a form which will give the appellate court the most help, and you will reap rewards in an opinion which does not overlook any of your important points. Sift out the main cases – the better reasoned, the more authoritative, the "root" or leading cases, those with facts which are closely in point or highly persuasive, those which can give excerpts of great value in establishing important principles or policies. Hightlight them – with a good introductory sentence or phrase, or with a concluding comment tying them into your case, or both. Subordinate to mere additional citation the less significant cases: those which merely support the point, and show weight of authority or spread of jurisdictions, or which show that the leading case is still followed by late cases. And don't clutter up the brief with a long list of cases of this character: substitute an encyclopedic or textbook citation or A.L.R. note, with the observation that it lists many other cases to the same effect.

Logical order and climax. How do you determine the sequence of points in a brief? About the simplest and least effective way is to list and argue them in the order in which you dig them out of the transcript or agreed statement of facts. All other methods are harder but better. Some lawyers prefer to make their strongest point first, and follow in descending scale to their makeweight arguments at the end. Others prefer climax, with the last point the strongest. Still others organize along logical lines the fact points and the legal points without regard to climax. There is no universally preferred method.

The Statement of Facts. In Moot Courts you are generally given a dehydrated statement of facts which appears in about the same form in the briefs of each side. But in actual appeals the facts are derived from a study of the transcript, are presented in partisan fashion, and differ radically in the opposing brief. Here is something to remember: You are an advocate, and the facts are often as important or more important than the law. You must therefore select with skill, and weave together a coherent picture of what happened, in such a way that it lays the groundwork for your argument and predisposes the appellate court to your side of the case. But, in doing so, you must be scrupulously accurate with the record in whatever you set forth as a fact, and you must be honest and fair in not omitting anything which is a significant fact and which affects the matters which you include, even if it is against you. You can't bury the disagreeable facts; your opponent will bring them in, and your omission will then not only have served no purpose but will discredit the whole statement and vitiate any favorable impression of the justice of your case. By putting in the whole picture, you can exercise your ingenuity in balancing the favorable and the unfavorable matters to lead to a conclusion, after your argument, that the significant facts are predominantly on your side.

The Conclusion. Some weary brief writers at the end of their product put in a heading called "Conclusion" and say that they respectfully submit that the judgment should be Affirmed or Reversed. I think this misses a big forensic opportunity. The conclusion is a place where you have immense freedom – you don't have to state facts impartially and you don't have to cite authorities. You are merely adding a final persuasive statement of your view as an advocate, and in it you can not only urge the justice of your side but the policy considerations which should govern the court in writing an opinion which will be a precedent. Us this opportunity to full advantage, but do not make it a stump speech full of extravagant claims.

A Final Word:

Skillful advocates have used all sorts of literary devices and forensic tricks to win cases on appeal. Statements of facts have been enlivened with catchword subheadings, or have been presented in an absorbing narrative. Extralegal materials – sociological, historical, scientific – are becoming more common in legal opinions, and they originate usually in briefs. This is a suggestion – look for ways to lend such individuality to a brief.

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Last updated
Tue, Jul 24, 2001