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Appellate Advocacy and Brief Writing

Appellate procedure resources for federal and state appellate courts.

Key Steps in Preparing to Write

  1. Analyze the case
  2. Examine the relevant parts of the record
  3. Preliminarily identify your theme and the issue or issues that you will raise or address in your brief
  4. Research the law pertaining to the issues you have identified
  5. Complete your secondary research
  6. Select the issues that you will present
  7. Draft a focused outline

Checklist Prior to Writing

  1. Know the Case (Facts of the case, Record and Procedural Posture of the Case, Standard of Review, and Theory of the Case)
    1. What are the facts of the case?  (Parties, chronology)
    2. What is the procedural posture of the case? 
    3. What is the judgment or order of the lower court?
    4. On what basis did the lower court make its decision (i.e. what are the findings of fact and law)?
    5. What is the burden of proof on appeal and on the parties?
    6. What standard must the appellate court apply to uphold or reverse the lower court's decision?  (Did the lower court abuse discretion, are there any set of facts to entitle the other party to relief?)
    7. What state and federal statutes, codes, and constitutional provisions are applicable?
    8. Specify the exact relief you seek from the appellate court.  (Isolate critical areas of case, determine importance of legal and factual issues, assess the record and legal authorities for support, construct persuasive argument.
  2. Is Research Complete?
    1.    Have you identified the issues?
    2.    Have you identified the controlling cases?
    3.    Have all cases and statutes been Shepardized or KeyCited?
    4.    What is the fact situation of each of the controlling cases?
    5.    How is each main case distinguished from, or similar to, other cases?
    6.    What is the holding and what is the dictum of each case?
    7.    Have you identified conflicts between circuits or between states?
    8.    Have you researched code and statute annotations?
    9.    Have you researched applicable legislative history?
    10.   Are you familiar with the court rules of the appellate court? 

Secondary Material

Generally includes sources that summarize, explain, or analyze the law, including treatises, law review articles, and restatements.  Although not authoritative, these sources are valuable research tools.  In addition, when no primary authority governs a dispute in a jurisdiction, these sources may provide guidance to a court in fashioning a new rule.

Treatises and articles frequently contain policy discussions that analyze novel issues and the social consequences of legal rules.  If a case involves an issue of broad consequence requiring a policy review, these sources may be helpful in developing and supporting policy arguments.

Although you need to be familiar with the policy views of the commentators, use these opinions sparingly in argument.  Primary authorities are the best basis for policy arguments.  It is one thing to extract a policy discussion from a case and another to advance a social theory that merely represents an individual's opinion.  When a court relies on policy to support a legal holding, it has elevated the policy from social to legal status.  The policy argument also should have special strength because it survived scrutiny in the adversarial process.

If you need to argue policy, find support for your contentions.  Thus, if the cases do not support your arguments, you may rely on secondary authority. Try to find a secondary source that is recognized as authoritative or has some special status in the relevant field.

~excerpt from "Persuasive Written and Oral Advocacy"