Never forget the importance of organization. It is vital to organize, not only the writing, but also the theory of the case.
Do not quote snippets from one precedent after another without fitting those precedents into an overall pattern.
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.
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.
Do not include false statements in your brief. It is stupid to lie to the court because it will sooner or later destroy your career. Just about the only function that you, the lawyer, serve-from the perspective of a busy judge with many controversies to resolve – is to be a conduit of useful and accurate information. Your function is to pull together the facts, apply them to the law, and explain your analysis to the judge in a helpful way.
Don’t brief the case until you have read it through at least once. Don’t think that because you have found the judge’s best purple prose you have necessarily extracted the essence of the decision. Look for unarticulated premises, logical fallacies, manipulation of the factual record, or distortions of precedent. Then ask, how does this case relate to other cases in the same general area of law? What does it show about judicial policymaking? Does the result violate your sense of justice or fairness? How might it have been better decided?
Do not expect your judges to know your subject. Some education is inevitably necessary, and you need to start doing so at the start of your brief. Group your common themes together.
Tell your reader at the beginning of the brief where you are going and how you will get there. Provide a roadmap to the reader in advance, through an introduction or opening paragraphs.
Use transition to let the reader know you are moving to a new point.
The brief should march across the page. It won’t unless your transitions are clear. Topic sentence at the start of each paragraph should provide both transition and mapping. (A topic sentence is a sentence that sets out the meaning or main idea of the paragraph). Headings and sub-headings do so as well. Your headings should be “argumentative” and explanatory.
Know the order of your authority. If your point on appeal rests on a statute, quote the statute first, and put a copy of the statute in your appendix or attached to your brief. That is what governs. Case law merely provides construction of the language of the statute.
When discussing case law, analyse it. Don’t just string-cite cases or regurgitate what an opinion says. Explain why the cases you rely on should control the case rather than the cases your opponent (or the lower court) cites.
Use your best three cases. If you cannot prevail on your best three cases having other cases won’t do you any good.
Formal conclusions are not worth the trouble. Start at the beginning; go to the end, and then stop.
