Writing an appellate brief that is effective and persuasive requires a unique skill set. The quality of your appellate brief will affect your likelihood of success on appeal. In most cases, the quality of the appellate brief is far more critical than the arguments you will make in court. As a result, drafting a persuasive and well-written appellate brief is crucial to your client’s case. We will discuss some step-by-step tips for drafting an outstanding appellate brief in Florida.
1. Know Why Your Client Should Succeed
Before you begin researching and become bogged down with legal issues and case law, it is wise to sit back and think about why your client should win on appeal. Your Statement of Case and Facts will be critical to providing logical and precedential grounds as to why your client should win. You want the appellate panel reviewing your brief to feel good about ruling in favor of your client based on the law and facts. Sometimes people overlook the statement of facts, but doing so is a mistake.
2. Write a Compelling Introduction
Your reader will be most focused on your brief at the very beginning. Your introduction sets the tone for your entire brief. You will make an excellent first impression, enhance the persuasive value of the argument, and gain credibility by impressing the court of appeal with your outstanding introduction. When you draft an outstanding introduction, you will need to include the following elements:
3. Simplify the Argument and Issue as Much as Possible
Many appellate briefs are complex and involve detailed and niche legal arguments. It is easy to forget to simplify the argument and issue in your brief. When you write your brief, keep in mind that judges in their clerks are extremely busy. They read many briefs a day, some of which are voluminous. They appreciate attorneys who represent the arguments and issues straightforwardly and transparently. Try to make your brief as understandable and relatable as possible.
4. Do Not Argue the Facts
You are most likely to prevail on appeal when you properly present the statement of facts without argument. The reader will be more likely to believe that your client should prevail. You should present your facts within the standard of review the court will be applying in a way that leads the reader to conclude that your client should prevail. Remember that appellate judges almost always defer to the factual findings of the lower court. Do not argue the facts in your case unless your legal issue involves a factual determination. You will rarely need to argue the facts, as it is the exception, not the rule. Most successful appellate briefs do not focus on facts but issues of law.
5. Know the Standard of Review
Be sure to understand which standard of review the appellate panel will use to decide your case. Will they be using the abuse of discretion, de novo, or clear error standard? Understanding the appropriate standard of review is crucial to your success. It provides you with the criteria the court will use to review your arguments. When you sit down to draft your brief, the standard of review should always be at the forefront of your mind.
6. Acknowledge Unfavorable Facts and Law
Do not make the mistake of concealing unfavorable facts or laws. The court will find the facts or law you have omitted. As a result, your credibility will be diminished when you are questioned about the omission. Explain why unfavorable facts or laws do not affect the remedy your client seeks. You will garner credibility and address issues that the opposing party will raise in their opposing brief.
7. Only Present Your Strongest Legal Arguments
It can be easy to “throw the kitchen sink” in your appellate brief, but presenting weak arguments distracts from your credibility. Be careful about arguing in the alternative as well. If you argue in the alternative, ensure that the alternative argument is sufficiently strong enough to merit its inclusion into your appellate brief. Instead, write out a list of the top legal arguments in your case and then narrow the list down to your strongest legal argument. Focusing on the most credible arguments will strengthen your appeal.
8. Write Your Brief, Then Rewrite and Edit Your Brief
Circuit court panels expect appellate briefs to be well-written and to avoid common mistakes found in poor writing. Do not be repetitive, and avoid using block quotes. Eliminate unnecessary adjectives and words. Do not attack your adversary or use over-the-top language. Do not attack the lower court. Avoid using sentences with over 25 words or long paragraphs. Make sure your brief is well-organized, flows logically, and is concise.
Avoid using footnotes. Keep in mind that no matter how strong your legal arguments, using bad writing will distract and detract from the persuasiveness of your arguments. The appellate process is different from the trial court process in several ways. One of the most significant differences involves the focus on your written brief at the appellate court level. Your appellate brief deserves significant care and attention.
9. Consult With an Experienced Appellate Lawyer
Are you an attorney who is responsible for appealing your client’s verdict? Are you concerned about writing an appellate brief? If so, discussing your case with attorney Donna Solomon of Solomon Appeals, Mediation & Arbitration can be helpful. Donna Sullivan is an award-winning appellate lawyer who provides consulting services to other Florida attorneys in civil appellate cases. Contact her today to schedule your initial consultation to learn more about her appellate consulting services.
Donna Greenspan Solomon, Esq., handles business-related litigation and appeals (state and federal), mediation, and arbitration.