spu #4
TRANSCRIPT
Appellate Practice & Procedure
Class #4:
Handling an Appeal—Preparing Briefs
(Part I)
presented by
D. Todd Smithhttp://texasappellatelawblog.com
for
Solo Practice University™
Introduction
Most appeals are won or lost on the briefing (aside from
merits)
Purpose of brief is to persuade the court that your client
should win
Focus today on basic strategies and appellant’s brief
The Basics
Legal writing ability is essential
Briefs should be brief; rarely approach page limits
Write for the justices, not yourself or your client
Use proper cite form
Go for helpful over adversarial
The Basics (cont’d)
Don’t assume the justices know the law, but don’t talk
down to them, either
Favor party names over “alphabet soup” and “Appellant”
or “Appellee”
Edit, edit, edit!
If you can, put the brief down for a few days, then edit
some more
The Basics (cont’d)
Have someone else proofread and cite-check
Have the brief copied and bound
As always, know and follow your jurisdiction’s rules,
and be mindful of local practices
Issue Selection
Limit to 2 or 3 issues or points of error if possible
More than 3 puts lawyer’s credibility at risk
Simple statements/questions v. “deep issues”—largely a
matter of preference or what court rules require
But avoid generic issues like “Did the trial court err by
granting summary judgment for the defendant?”
Tables/Indexes
First opportunity for advocacy
Correctness in formatting, cite form, etc. important
Restate issues and argument outline; previews what the
case is about and kick-starts justices’ thinking
Insert last, after all editing is complete
Statement of Facts
Tell a story
Think thorough, but short—just enough to cover what is
necessary to understand and decide the case
Disclose bad facts to protect credibility, but minimize
their importance to the story
Avoid argument, but nothing wrong with phrasing
favorably and persuasively if true to the record
Standards of Review
Abuse of discretion, plain error, de novo, etc.
A credible appellant’s brief will address them; good ones
embrace them
Don’t just tell the appellate court that reversal is
warranted because the standard is met; show it why
Summary of the Argument
Prepare it near end of briefing process, right before
tables/indexes
Distill your positions down to a few paragraphs
Justices will often read this section first
Argument and Authorities
Lead with the strongest, procedurally (rendition v.
remand) and substantively
Rely on the strongest authorities you can find (i.e., case
law from the highest relevant court and the court
deciding the appeal)
Confront weaknesses and authority contrary to your
client’s position and explain how you overcome them
Argument and Authorities (cont’d)
Break text up with headings at least every few pages
Roman numeral outlines are an effective tool for
organizing arguments and transitioning
Weave relevant facts into legal argument
Avoid substantive footnotes; usually, if an argument is
worth including at all, it should go in the text
Relief Requested
Consider carefully what you want the court to do
Ask for that relief specifically and, if appropriate, in the
alternative
As the appellant, you should request:•reversal and rendition of judgment favoring your client;
•reversal and modification of the trial court’s judgment; or
•reversal and remand for further proceedings (i.e., new trial)
Sample Briefs
Some are available through my JD Supra profile
I will be adding to my library in the coming months
Questions?
“Stop by” during office hours
Participate in the official study group
Visit the Appellate Discussion Lounge
Appellate Practice & Procedure
Class #5:
Handling an Appeal—Preparing Briefs
(Part II)
presented by
D. Todd Smithhttp://texasappellatelawblog.com
for
Solo Practice University™