Appellate brief writing tips from top Md. judges

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The primary function of the appellate court is to consider errors of law committed by the trial judge. Advocacy in the appellate court is an art unto itself. John W. Davis, Esq., a great appellate advocate, once remarked that if fish could talk no one would ask an angler how to catch a fish. But judges can talk. So let’s hear directly from them about how to persuade with our appellate briefs.

These tips are derived from interviews appearing in “Appellate Practice for the Maryland Lawyer: State and Federal,” Fourth and Fifth Editions (“AP 4th or 5th”), published by MSBA; and the MSBA Journal (“MSBA J”), volume 1, issue 3.

Court of Appeals Chief Judge Mary Ellen Barbera (AP 5th):

“A well-written brief that effectively sets forth that party’s legal position sets the stage for a more productive oral argument, [and] cannot but help to focus the Court’s questions on the key issues to be decided.”

It is a product of research that includes authority bearing on the issues to be decided, even authority that is “potentially damaging.” Advocates should distinguish damaging authority, if possible, or demonstrate to the court the authority deserves little attention. Under no circumstances should counsel “ever attempt to hide or misstate facts” — or the law.

Barbera advises that reply briefs can be “quite helpful if properly employed,” but they should not “simply repeat the arguments set forth in the opening brief.” A reply should be used to correct a point of law or fact in respondent’s brief, point out any weaknesses in the reasoning of the respondent, and explain why the authority upon which the respondent relies is inapposite or does not represent either the majority or better-reasoned decision on the subject.

Court of Special Appeals Chief Judge Matthew J. Fader (MSBA J):

According to Fader, the brief is the best opportunity to address the issues before the court in “a well-structured and uninterrupted manner,” and the most important part of the process after preserving the record.

He emphasizes the importance of the arguments’ order, as well as manner of presentation of the facts, and stresses the importance of being “organized, clear, and concise; and avoiding repetition.” He suggests “hav[ing] someone else read your brief, both for proofreading and for feedback on how clear and concise the argument is.”  The court is your audience, not your client or opposing counsel. “Know the rules” and “jealously guard your credibility.”

Retired Court of Special Appeals Chief Judges Peter B. Krauser (AP 4th) and Patrick L. Woodward (AP 5th):

Krauser believes the biggest mistake in brief writing is a lack of focus on central issues on appeal. “Too many issues muddle the meritorious arguments that are presented and take up valuable time.”

Counsel must be thoroughly versed as to the content of the record and know relevant case law cold. This includes knowing, and applying, the appropriate standard of review.

Woodard considers the brief the most important component of the appeal. Be concise and “use headings and subheadings to guide the reader through each step of your argument.” He stresses the importance of accuracy in citing facts and law, while also acknowledging unfavorable facts or law. If you lose your credibility, you lose all effectiveness as an advocate.

He suggests familiarizing yourself with the appellate rules of procedure and following them strictly. Do not cite unreported opinions. Do not write the brief to please your client, and avoid ad hominem attacks on the trial judge and opposing counsel or party.

4^th U.S. Circuit Chief Judge Roger L. Gregory (AP 5^th):

Gregory tells us that “the brief in most cases is far more important than oral argument.” It is the court’s first opportunity to appreciate the issues. Only 25% of cases are scheduled for oral argument.

“The brief must be organized in a manner that effectively conveys counsel’s theory of the case, explains the questions to be decided … and sets forth clear reasons supporting how the case should be decided.” Also, never misstate the holding of a case. If you do, point out the mistake to the court with a correction.

“Too often we see a lack of clarity in writing style,” Gregory says. He “urges counsel to read and reread the rules — Federal Rules of Appellate Procedure, Fourth Circuit Internal operating rules, and local rules.”

He believes the reply brief is important because it allows the appellant to focus on the pivotal facts and law that will determine the case’s outcome. This is critical given that oral argument is usually not granted.

These tips by no means cover the full range and challenges of appellate brief writing. Sample briefs and numerous chapters on the topic are included in the MSBA book on appeals.

Paul Mark Sandler, trial lawyer and author, can be reached at [email protected].