Effective Brief Writing and Oral Argument

EFFECTIVE BRIEF WRITING

The brief is the most important part of the appeal. It is submitted for only one reason, to help persuade the court to reach the desired result. Anything about the brief that detracts from that end is counterproductive, and that includes distractions like excess verbiage, poor grammar, incorrect citations, spelling errors and inadequate margins.

If a judge finds that a brief is repetitive, contains irrelevant matter or is burdensome to read, he or she will reject it. Conversely, if the brief engages and holds the interest of the reader by telling an absorbing story and addressing the legal issues in a clear and logical manner, it will be read, however long it is.

Appellate judges are inundated with reading material and often read briefs at home, nights and weekends. Judges should not be expected to read and re-read cumbersome sentences. Judges want to grasp the essence of the argument and get on to the next case. The experienced brief writer will present his or her argument as simply, concisely and clearly as possible.

The goal then is to hold the attention of the judge, establish credibility and ultimately persuade the judge that your position is correct.

INSIGHTS AND SUGGESTIONS:

The Appellant's Brief:

(1) The brief must be fully thought through before your writing begins. If you do not know your objectives and the points that you intend to make to achieve them, it is unlikely that the reader will either.

(2) At the top of the list of effective brief writing is a clear and concise presentation of your contentions. The active, not the passive, tense should be used and the brief should be no longer than is absolutely necessary to make your points.

(3) The statement of facts is the most important part of the brief. It is the writer's first opportunity to relate the case to the court. No matter how much substantive law a judge may know, he or she knows nothing about the facts of the case until the appellant's brief is read.

(a) The presentation of the facts must be scrupulously fair. Counsel should state the facts truthfully, without exaggeration, but in such a way as to permit or suggest the inferences that favor his or her side of the case.

(b) Throughout, counsel should avoid exaggeration or unwarranted conclusions which actually detract from the credibility of the brief.

(c) Unfavorable facts should not be ignored; if they are, they will be injected all the more tellingly by the other side. The unfavorable fact should be put forward in the best possible light.

(d) A chronological development of the facts is usually best. It is the easiest to follow and creates a realistic relationship between persons and events.

(e) Consider using subheadings when the facts are lengthy in order to focus the reader's attention more closely. Clarity may also be well served by reproducing an exhibit as part of the brief or by using a diagram, chart or table.

(f) Throughout the brief, use the same designation for

the same party. This will make it much easier for the reader to follow your story. In Family Law litigation, reference to the parties as "mother and father" or as "husband" and "wife" is often more helpful to a quick understanding of the issues than "appellant" and "respondent."

(g) All facts recited in the statement of facts should be documented by parenthetical record references. It is better to include record references at the end of each sentence or after each crucial fact, rather than in a long string at the end of an entire paragraph.

(h) One of the more serious breaches of appellate decorum is to refer to matters outside or "dehors" the record. It is a fundamental rule of appellate practice that the rights of the litigants are to be determined based on what is in the record. Counsel do not help their case by attaching to the briefs matter outside the record.

(4) The questions presented should be directly related to the point headings that follow in the argument portion of the brief. The point headings should be affirmative statements in answer to each question presented. Every part of the brief should be viewed as part of an integrated argument, making and re-emphasizing your points.

(5) The legal argument portion of the brief should be divided into separate points, each with its own heading.

(a) There is no need to repeat the statement of facts in the body of the legal argument.

(b) Ordinarily, the strongest point should be argued first and the remaining points made in diminishing order of strength. However, ease of comprehension is of equal importance and dictates that arguments be advanced in logical progression of thought.

(c) Do not overburden the court with a multitude of insubstantial points. If you have two strong arguments followed by a number of frivolous points, the judge may forget your best arguments by the time he or she arrives at the last point.

(d) Your objective should be to move the reader, smoothly and without distraction, to the inevitable conclusion that relief is necessary to correct the error or injustice of the result below. However, it is not enough to show error, you need to demonstrate reversible error.

(e) A dignified and professional tone should be maintained. No matter how intense your feelings may be about what happened below, avoid sarcasm and other forms of intemperate and unwarranted attacks on opposing counsel or the court which not only are improper, but often counterproductive.

(f) Counsel must bear in mind that the function of an appellate brief is to assist, not mislead, the court and that advocates have an affirmative obligation to advise the court of adverse authorities directly on point, though they are free to urge their reconsideration.

(i) An advocate has a duty to disclose directly adverse authority in the controlling jurisdiction which has not been disclosed by the opposing party (see Rules of Professional Conduct: Rule 3.3 [a][1];[a][2]).

(g) Also bear in mind the court you are addressing. When the appeal is to the highest court of the jurisdiction, it is a mistake to rely on precedent alone. Be prepared to advance policy reasons why those precedents are still valid.

(i) If the appeal is to an intermediate appellate court, such as the Appellate Division, you are less likely to prevail on an argument designed to show that public policy requires a change in the law.

(ii) The basis for an argument urging a change in the law should be mentioned in the brief to the intermediate appellate court, however, so you will not be deemed to have waived it.

(h) Case citations should be to the official reports; a style manual should be obtained and followed; "string citations" – numerous citations strung together without discussion in support of the same position – should not be used. Citing and discussing two or three cases closely on point is more effective, and use pinpoint citations - to specific page numbers - to facilitate the judges' review of the cases. Contrary cases should be distinguished, if possible.

(i) Footnotes are distracting and quotations are often too long and less effective than a paraphrase. Counsel should be cautious in the use of both devices.

(j) Care should be taken to make sure that all writing is gender neutral.

(k) If the brief refers to an esoteric text or court decision not readily available, the item cited can be reprinted as an addendum.

(l) The conclusion should state tersely and clearly what you want the reviewing court to do and, where applicable, an alternative.

The Respondent's Brief:

A respondent's brief responds to the appellant's brief and makes its own case.

(1) The respondent's brief should not only answer the appellant's points – or state why it does not – but also present its own affirmative side of the case, on both the facts and the law.

(2) It is generally a mistake to accept appellant's statement of the facts or questions presented. In most cases, counter-questions or a counter-statement of the case should be prepared.

(3) The opinion below, if there was one, will usually provide important support for respondent's position.

(4) Respondent should not overlook the possibility that the trial judge reached the right result for the wrong reason.

(5) Never accuse your opponent of lying or deliberately misstating the holding of a case. The most outrageous misstatements can be turned to your advantage in a professionally dignified manner.

(6) Similarly, if your opponent indulges in absolutes

("There is no evidence..." or "it was undisputed that..."), the simplest and most effective way to destroy his or her credibility is to quote the evidence (with specific reference to the record) belying that assertion.

The Reply Brief:

A reply brief should be filed only if you have something new and important to say, not simply to have the last word.

(1) Sur-reply briefs are not permitted in any of the New York Appellate Courts.

(2) Neither are post-argument or post-submission communications to the court unless they have been specifically requested and authorized by the court.

Note: Don't forget to include a "Table of Authorities and Cases." This is a must. All citations should be accurate and to official reports.

SUMMARY - BRIEF WRITING

FIRST - You must know the record on appeal from cover to cover and do not misstate or overstate the record. Document crucial facts by page references to the record and stay within the record.

SECOND - Keep the brief as simple and as short as you possibly can. There is no reason – in 90% of the appeals that are heard – to test the rules on page limitations. Quite frankly, in most cases, a 15 or 20 page brief will do the job nicely.

THIRD - Selectivity in the number of points you raise is extremely important. Choose, at most, 3 or 4 of the strongest points and have sufficient confidence in them to withstand the temptation and, at times, the forceful recommendation of clients, to raise less compelling grounds.

FINALLY - No matter how intense your feelings may be about what happened below, a dignified and professional tone should be maintained. Attacks upon opposing counsel or the trial judge are counterproductive.

You should therefore -

(1) Know the record

(2) Keep the brief short and simple

(3) Focus on the critical points

(4) Maintain a dignified approach

See CPLR 5528 and 5529 "Content (and Form) of Briefs and Appendices" and

Rules of the Court to which you are bringing your appeal.

EFFECTIVE ORAL ADVOCACY

The value of oral argument today is primarily in the opportunity it gives counsel to emphasize the essentials of his or her case and, through dialogue with the court, to answer whatever doubts have been left in the minds of the judges after reading the briefs.

The presentation must depend upon the judgment and style of each individual advocate and should be governed by the comfort level of the lawyer presenting. This makes advice about oral argument difficult, but there are several matters that can be highlighted and stressed -

(1) First, should you argue or submit?

(a) In some cases, the choice is made for you by the rules of the court;

(b) In most cases, if appellant's counsel has the opportunity to argue, he or she should do so. Oral argument enables the judges and counsel to crystallize their thinking by cutting through the mass of papers to reach the heart of the controversy.

(c) If you are a respondent, and the appellant intends to argue, you should be prepared to argue. What if you are a respondent and the appellant submits? It is generally a rare case where the respondent should argue if the appellant submits.

(2) If permitted, the appellant should always reserve a minute or two for rebuttal – just in case your opponent misstates some fact or raises a new issue. The request for rebuttal time must be made at opening of your argument.

(3) Counsel should always state his or her name and the party represented. Even if we know you, state your name.

(4) Do not simply rehash the brief. Do not read a prepared argument. Obtain and hold the court's attention and communicate with the members of the panel.

(a) Counsel should look not just at the Justice Presiding, but from one member of the panel to another. Speak up. Initially, wake up the court with a statement of what the appeal is about in a manner that will stimulate some questions.

(b) Stay behind the lectern. You are not trying a case before a jury and should not be pacing back and forth.

(c) Remember, in this era of the "hot bench", the court has read the briefs and perhaps the record and some of the cited cases; prepare for and

make your argument with this in mind.

(i) You need not devote much time to a statement of the facts, but be prepared with one so you can answer questions and comment upon any liberty the other side attempts with the record.

(ii) Also keep in mind that not all judges are equally well prepared in all cases.

(iii) Lead with your best points. Do not begin oral argument by correcting errors in a brief.

(iv) Do not try to argue every issue in your brief. Focus on one or two and rely on your brief for the rest.

(v) Don't bore the court with full citation of case names or quotes from decisional law.

(d) If you are asked a question - answer it. Do not say "I will get to that later." The question was obviously important enough to the judge to cause him or her to interrupt your argument. It should be answered at once.

(i) Certainly, be sure that you understand the question before answering it.

(ii) If the question from the court seems to indicate disagreement with your position, take the opportunity to emphasize your position and engage the court in further dialogue.

(iii) You must be absolutely candid in answering questions, even if the answer is something you would rather not have elicited.

(iv) If you do not know the answer to a question, or have not previously thought about the case in the context of the question, do not be afraid to say so.

(v) Before you make any concession, be sure you fully understand the question and all of its implications.

(vi) If counsel deems a question from the bench irrelevant, he or she should answer it anyway and then respectfully point out that it is not relevant and explain the reason.

(vii) When you have answered a question – move

back to your argument. Do not say, "Does that answer your question, your honor?" If you haven't answered to the court's satisfaction, you'll soon know.

(5) Be flexible – If some of your allotted time is used up in a debate with a member of the court, be sure you have an alternative argument to touch upon the important issues you may not have had the opportunity to fully discuss.

(6) Don't lecture the court. You don't have to tell the court the elements of an "estoppel" or that "summary judgment is a drastic remedy."

(7) Avoid personal attacks upon the trial judge or your adversary. While your adversary is arguing, refrain from facial expressions or other body language demonstrating disbelief or other emotions. If you refer to any of the judges on the court by name, pronounce that name correctly.

(8) One difficulty that counsel may face is that at times members of the bench may converse among themselves. The better course is simply to continue with the argument, addressing it to those members of the bench still following it.

(9) Be mindful of the time allotted. Just because you requested a certain amount of time does not mean that you are under any obligation to speak that long. Certainly, the court will not be disappointed if you finish your argument before your time has been used up.

(10) If some of respondent's points have been covered during the appellant's argument by questions from the bench, the respondent should not hesitate to advise the court that he or she will rely on the brief for those points unless there are any questions.

(11) Remember, the members of the court were at one time practicing lawyers – just like you – who enjoy dialogue with well-prepared lawyers. In the final analysis, if you advance some of your prepared argument and converse intelligently with the court without conceding your case away, you have probably made as effective a legal argument as you could have, and added something to your brief.

SUMMARY - ORAL ARGUMENT

FIRST - A great deal of time and effort must be spent in preparing for the argument. If you are unprepared, it will be apparent to the court. You must be able to find relevant material in the record and you should reread and be familiar with each of the cases relied upon in the briefs.

SECOND - Hold the court's attention by focusing on the critical issues. Lead with your best points and do not feel that you must argue every issue in your brief. Assume that the court is well prepared but be flexible and prepared to relate the facts.

THIRD - Answer questions directly and at once, even if it means you must deviate from your carefully prepared outline of the argument. Be absolutely candid in answering questions, but do not let questions intimidate you into surrendering a position you believe to be correct.

FINALLY - Be very careful not to exceed the allotted time. End your argument on a high note. Prepare a brief conclusion that summarizes the essence of your argument, which you can give in 30 seconds in the event you run out of time.

You should therefore -

(1) Thoroughly prepare

(2) Focus on the critical issues

(3) Answer questions immediately, but carefully and cautiously

(4) End your argument on a high note within the allotted time

See Rules of the Court to which you are brining your appeal.

Note:

In your preparation, you should seriously consider consulting the following New York State Bar Association publications:

(1) Practitioner's Handbook for Appeals to the Appellate Divisions of the State of New York (Second Edition).

(2) Practitioner's Handbook for Appeals to the Court of Appeals

(Third Edition).

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Last updated January 12, 2010

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