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Quick Tips for a Winning Appellate Brief
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
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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.
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Final Words on Finality?
BY SCOTT P. STOLLEY
Courts have long struggled with determining when a judgment is final and, therefore, appealable.
Two recent cases—from the Texas Supreme Court and the U.S. Fifth Circuit—illustrate why such questions are difficult. As in those cases, the problem often arises when the plaintiff obtains a disposition as to only some defendants.
Bella Palma
The Texas Supreme Court revisited the subject of finality in Bella Palma, LLC v. Young, 2020 WL 1898543 (Tex. Apr. 17, 2020), providing important guidance for drafting and interpreting judgments.
Although the summary judgment in Bella Palma contained Mother Hubbard language (“All relief not granted herein is denied. This is a final judgment.”), the judgment failed to mention a nonserved defendant. After the court of appeals requested clarification about the judgment’s finality, the trial court entered an order unambiguously confirming that it intended to render a final judgment.
Nevertheless, the court of appeals reviewed the entire record and held that the judgment was interlocutory, because it did not dispose of the claims CONTINUED FROM PAGE 1 must adequately protect the judgment creditor against loss or damage that the appeal might cause. against the nonserved defendant.
The Supreme Court held that the court of appeals erred by performing its own record review instead of giving effect to the trial court’s unmistakable expression of finality:
We have previously held that a judgment is final either if “it actually disposes of every pending claim and party” or “it clearly and unequivocally states that it finally disposes of all claims and all parties.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). The court of appeals mistakenly read Lehmann to require record evidence of finality and an unequivocal expression of finality. … Instead, a clear and unequivocal statement of finality must be “given effect” even if review of the record would undermine finality.
Id. at *2 (emphasis in original). The Court held that the trial court’s clarification order should have been taken at face value as a clear indication of finality. Id.
The Court provided this clear advice for drafting a judgment: “Although no ‘magic language’ is required, a trial court may express its intent to render a final judgment by describing its action as (1) final, (2) a disposition of all claims and parties, and (3) appealable.” Id.
This is an easy prescription to follow, but if the appellate court questions finalFor both monetary and non-monetary judgments, a debtor can request that the bond be set at a lower amount than that required by the rules outlined above. After notice and a hearing, if ity, Bella Palma teaches that the next step is to abate the appeal and ask the trial court to clarify. A clarification order must be given effect when it clearly and unequivocally indicates finality.
Williams
In Williams v. Taylor Seidenbach, Inc., the U.S. Fifth Circuit—in a split, en banc decision—dealt with the socalled “finality trap.” 958 F.3d 341 (5th Cir.) (en banc). This trap occurs when the plaintiff dismisses a defendant without prejudice, which allows the plaintiff to sue that defendant later. This ability to sue a dismissed defendant means the case is not final as to other defendants, even those who have prevailed on the merits. In Williams, several defendants obtained summary judgment, and the plaintiffs then voluntarily dismissed the remaining defendants under Federal Rule of Civil Procedure 41(a). As to the defendants that obtained summary judgment, the plaintiffs then obtained a Rule 54(b) partial final judgment.
The question was whether the plaintiffs had a final judgment that they could appeal as to the defendants that obtained summary judgment. The majority ruled that the summary judgment was made final by virtue of the Rule 54(b) partial final judgment. the trial court finds that the amount will likely cause the debtor substantial economic harm, the court can then decrease the amount of bond that will not cause the debtor substantial economic harm.
A party dissatisfied with the trial court’s ruling on supersedeas issues can file a motion for relief in the court of appeals, which is typically reviewed for abuse of discretion. The motion can be based on both the conditions at the time of the trial court’s order and on changed conditions. The Supreme Court of Texas can review the court of appeals’ ruling through a petition for writ of mandamus.
To obtain the protection from the adverse judgment, a judgment debtor cannot rely on security posted by a codebtor. Debtors are permitted to file joint security, but if a judgment is reversed
Rule 54(b) states in part: “When an action presents more than one claim for relief … or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay.” Essentially, this rule gives the district court latitude to carve out some claims for treatment as final, appealable claims.
The Fifth Circuit majority held that this rule created a final, appealable judgment as to the defendants that had obtained summary judgment. Id. at 349. This was true even though the plaintiffs could revive their claims against the voluntarily dismissed defendants.
The majority also listed three other ways the plaintiffs could have obtained a final, appealable judgment: (a) by dismissing the remaining defendants with prejudice under Rule 41(a); (b) by amending their complaint to remove claims or parties under Rule 15(a); or (c) by obtaining a severance order under Rule 21.
These cases show that while finality can be tricky, careful attention to the judgment and the procedural rules can readily solve any problem. HN
Scott P. Stolley is a solo appellate lawyer, who can be reached at
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scott@appellatehub.com. against one debtor but not the other, the debtor who has won on appeal risks not being able to recover any of the security that was jointly posted.
Finally, if a party is unable to file a bond or make a deposit in lieu of bond, a party can, pursuant to a court order, provide “alternate” security to suspend enforcement on a judgment. For example, when a debtor has significant but illiquid assets, courts can allow real or personal property to be posted as security or can enjoin the transfer of assets that could be used to satisfy the judgment. A trial court’s injunction cannot interfere with the debtor’s use, transfer, conveyance, or dissipation of assets in the normal course of business. HN
Brent Rubin is an attorney at Carrington, Coleman, Sloman & Blumenthal, LLP. He can be reached at brubin@ ccsb.com.
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