SOME OBSERVATIONS ON APPELLATE BRIEF WRITING
IN CALIFORNIA COURTS
FOR LAW STUDENTS IN MOOT COURT AND WRITING CLASSES
BY B. E. WITKIN
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:
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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.
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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.
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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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