In a book I edited, entitled The Appellate Prosecutor: A Practical and Inspirational Guide to Appellate Advocacy, J. Frederic Voros, Jr., who when the book was published was the Chief of the Appeals Division of the Utah Attorney General’s Office, contributed a chapter—“Writing the Brief.” Mr. Voros’s chapter focuses on how to write an appellate brief. Here is a favorite excerpt from his chapter, which is valuable for any advocate whether are a prosecutor, criminal defense counsel or have a civil practice.
An appellate brief should be brief. It should also be clear and accurate. These qualities are not the end; the end is of course to persuade the court. But they are the means, and they are a necessary means. They are the ABC’s of briefing: be accurate, be brief, and be clear. No brief will persuade that violates these cardinal rules.
THE C ARDIAL RULES OF BRIEF - WRITING
Firs t C a r d i n a l Ru l e : B e A c c u r a t e
An appellate brief must be scrupulously accurate. When a factual assertion is followed by a citation to a page in the record—and each one should be—that page, fairly read, must support the assertion. Likewise, when a case is cited in support of a legal assertion, the case, fairly read must support the assertion. Statements of what a case means or holds must withstand a fair reading of the case. To cheat in citing to the record or to legal authority is both wrong and foolish: wrong because it is an attempt to deceive the court, foolish because any inaccuracy in the brief will be discovered either by opposing counsel or by a law clerk. Neither prospect is a happy one. If opposing counsel discovers the inaccuracy, she has an additional weapon to attack your argument and, inferentially, your credibility.
If a judge’s law clerk discovers the inaccuracy, you may never know it, but the judge will. Most clerks begin life assuming that attorneys are thorough and conscientious, and are deeply impressed with evidence to the contrary. When they find it, they will feel they have found a pearl of great price that must be shared with their judge, or even included in a written opinion. You do not want your professional legacy to include this kind of reference: “In presenting this issue, defendant has not accurately represented the trial court’s decision.”
Most crucial from the point of view of advocacy, an attorney who fails to be candid with the court will also fail to persuade the court. Of course, inaccuracy may result from sloppy as well as sharp practice. Unfortunately, from the judge’s vantage point, the two are often indistinguishable.
Ensuring accurate citation is not difficult; all that is required is a thorough cite-check. The cite check should at minimum confirm or correct every record cite; confirm or correct every legal cite, including pin cites; and update all cited cases. Ideally, these tasks should be performed by someone other than the brief-writer; we all tend to miss our own lapses.
Second Cardinal Rule: Be Brief
A short brief is a favor to your reader. Judges are required to read a huge volume of written material. Part of this is our fault. Most briefs are written in haste, and, as a consequence, they are far longer than necessary. When we file a bloated brief, we cast upon the judges the burden of doing the final edit mentally as they read, and they like to edit our writing even less than we do. On the other hand, when we edit our briefs before filing them, judges appreciate it. Our editing makes their lives easier. Good editing is good advocacy.
There is truth in the German proverb, “Loquacity and lying are cousins.” Generally, the more straight-forward the argument, the fewer words needed to make it. You need few words to say that the law and the facts are on your side. You need many to explain why a statute or case that seems to doom your argument really does not. Therefore, all else being equal, length and strength are inversely related. Judges know this, and it makes them suspicious of long briefs. For example, the California Supreme Court once stated that they were “inclined to doubt the correctness of the ruling of the court below, on account of the extreme length of the brief of the learned counsel for respondent in its support.” “Knowing the abilities of counsel,” the court continued, “and their accurate knowledge of the law, a brief of 85 pages, coming from them in support of a single ruling of the court below, casts great doubt upon such ruling.” The court’s pique was thinly veiled: “However, the learned counsel may not have had time to prepare a short brief, and for that reason have cast upon us the unnecessary labor of reading and extracting therefrom the points made. If we overlook any of them, counsel will readily understand the reason.”
Not only do shorter briefs look more persuasive, they are more persuasive. Usually, long briefs are long because they waste words. They digress or repeat or argue uncontested matters or make their point circuitously rather than linearly. They are difficult to follow, and their salient points are often lost in a clutter of words.
Therefore, after you finish writing, start cutting. Strike interesting but sidelight arguments. Strike empty fillers such as “Clearly,” “The State asserts that” and “It is apparent that.” In addition to adding needless bulk, these expressions convey tentativeness rather than confidence. Unless dates are critical, such as where defendant asserts a statute of limitations claim, include only one or two. Also, follow Mark Twain’s advice: “When you catch an adjective, kill it.” The same is true of adverbs. Nouns and verbs are strong; make them do the heavy lifting. Scrutinize long footnotes: irrelevancies lurk there. Shorten sentences and paragraphs. Tighten up.
Third Cardinal Rule: Be Clear
Clarity precedes persuasion. A judge who does not understand your argument cannot be persuaded by it. Oliver Wendell Holmes wrote, “I would not give a fig for the simplicity this side of complexity, but I would give my life for the simplicity on the other side of complexity.” We are responsible for wringing simplicity from the complexity of the appellate record. The court is “not a depository into which the parties dump the burden of research and analysis.” We must sift through and present the relevant material in logical order. Your brief is sufficiently clear if an intelligent lay person can comprehend it in one reading. Keep it simple.
But how? For starters, put your main point up front. Do not bury it in the middle of a paragraph or in a parenthetical following a case citation. “Judges are not like pigs, hunting for truffles buried in briefs.” Do not hide the ball or unravel your argument gradually. You are not writing a suspense novel. A reader who knows your point up front can assimilate what follows, because he has a general framework into which to fit the detail. The opposite is not true: a reader faced with a mass of detail will understand none of it, because it lacks shape. Your readers should never have to wonder why you are telling them something. Transparency, not subtlety, is your goal.
If you enjoyed this excerpt, please consider getting The Appellate Prosecutor.