8 He a d n o t e s l D a l l a s B a r A s s o ciation
Focus
A ugust 2020
Appellate/Antitrust & Trade Regulation
Brief and Appealing: Quick Tips for a Winning Appellate Brief BY BETH M. JOHNSON
Drafting a clear, easy-to-read, persuasive brief requires technical knowhow and a touch of finesse. If that is your goal, one of the best ways to improve is to listen to the judges and give them what they want. Below are a few tips I have gleaned from appellate judges over the years.
1. Know Your Audience
When writing anything, you should always first consider, “Who is my audience?” In writing to the trial court, the facts come first. If you can convince the trial court to agree with your client’s version of events, quite often the legal analysis is straightforward. In contrast, the appellate court focuses on application of legal precedent first and foremost. Overly passionate, argumentative factual accounts that might persuade the trial court are generally less effective in appellate briefs. Appellate courts want briefs that swiftly get to the point.
What is the basis for appeal? Why did the trial court get it wrong or right? What relief is requested? Put your argument into context at the outset; do not wait until page ten to finally tell the court your issue. Remember that appellate judges often read briefing on a tablet or other electronic device. This has led many judges to strongly dislike footnotes in briefing. Having to scroll to the end of a page to see “Id.” and then relocate their place in the body of the text is annoying and wastes time—neither of which you want to inflict on the arbiter of your case. A well-placed footnote can be useful from time to time but keep citations in the body of your brief. Another tip: when citing to a PDF document such as the clerk’s record, sometimes there is discrepancy between the page numbers of the record versus the PDF. Appellate judges prefer to see the PDF page numbers in your citations. That makes it faster and easier to locate your citation in electronic format. I like to include both the PDF and the writ-
Need Help? You’re Not Alone. Texas Lawyers’ Assistance Program…………...(800) 343-8527 Alcoholics Anonymous…………………………...(214) 887-6699 Narcotics Anonymous…………………………….(972) 699-9306 Al Anon…………………………………………..…..(214) 363-0461 Mental Health Assoc…………………………….…(214) 828-4192 Crisis Hotline………………………………………..1-800-SUICIDE Suicide Crisis Ctr SMU.…………………………...(214) 828-1000 Metrocare Services………………………………...(214) 743-1200 More resources available online at www.dallasbar.org/content/peer-assistance-committee
Holmes Firm PC is Proud to Announce the Newest Member of Our Team. Holmes Firm PC is proud to announce that Jennifer S. Stoddard joined the firm as a shareholder in June 2020. Jennifer focuses her practice on business transactions, including mergers and acquisitions, complex entity formations, finance and real estate transactions. In addition, she has 28 years of commercial litigation experience, so she is equally comfortable in the Board Room, the Court Room and at the Closing Table.
Jennifer earned her degree in Journalism from University of Kansas in 1984 and received her law degree in 1991 from Southern Methodist University. She is passionate about current events and politics, is a past President and current Board Member of Executive Women of Dallas, and is a member of Northwood Women’s Club. Please welcome Jennifer to the firm by reaching out to her at jennifer@ theholmesfirm.com or (469) 916-7700 ext. 118.
Holmes Firm PC 14911 Quorum Drive, Suite 340, Dallas, TX 75254 469-916-7700 | www.theholmesfirm.com
ten page number in my record references, but be sure whatever method you use is 100 percent clear for the reader. For example, if a multi-volume clerk’s record is consecutively paginated, and volume 2 starts on page 356, to refer to that first page, I would cite 2CR:356(1) with a note that the number in parenthesis refers to the PDF page number.
2. Be Strategic
Carefully consider the issues you want to present on appeal. Choose your best three to five issues and stop there. Identify your strongest issue, present it first, and work your way down from there. Do not waste your—or the court’s—time on weak issues, which only distract from the strong ones.
3. Be Concise
Remember IRAC from law school? State your Issue, state the Rule (of law), Apply the law to the issue, quickly Conclude, and move on. Choose a roadmap and follow it: Appellant wins because A, B, and C. Then clearly explain A, B, and C. Use IRAC to check yourself throughout the drafting process. Force yourself to cut arguments down to their core. Be willing to lop off that perfect sentence or paragraph if it is not essential. Brevity is the name of the game. Not only do the Texas Rules of Appellate Procedure impose word limits on briefs, but fewer words often mean better communication. Use active voice whenever possible. Who is the actor? “The order was signed by the trial court” or “The trial court
signed the order.” This small change not only helps your word count but is simply more interesting to read. Do not use extra, meaningless words. If something is “clearly” true, then you do not need the word “clearly”—same goes for very, extremely, etc. Use more precise and powerful descriptors instead of these extra adverbs. Do not repeat yourself. Try reading your brief backwards—start with the last paragraph and work towards the first. This sometimes helps identify repetitive statements you may overlook when reading from start to finish.
4. Be Honest
Do not try to hide your bad facts. The court has the appellate record and will review it—especially if the other party’s facts do not match up with your account. Be candid and explain why the law favors your position notwithstanding the bad facts. Dishonesty in your factual presentation casts doubt on your interpretation of the law and could follow you through your career.
5. Avoid Exaggeration
While bluster and grandiosity might sway a jury, it does not impress the appellate bench. You are likely not presenting the most egregious fraud the court has ever seen. AND THE COURTS DO NOT LIKE ALL CAPS or excessive bolding, italicizing, or underlining. Such tactics distract the reader. Use precise words to convey your message. HN
Beth M. Johnson is an attorney at Calabrese Budner, LLP and can be reached at beth@calabresebudner.com.
Want to help your favorite charity from home? The Dallas Bar Association Community Involvement Committee is pleased to announce its Charity Madness 2020 initiative. In lieu of our annual in-person Project Community initiative, formerly known as the Day of Service, we will be hosting an online March Madness style charity bracket. Sixteen top charities will make the bracket and it will be up to you, our members, to choose the final two charities. Donations will go to each of the winning charities. Stay tuned for more information!
