Briefs on Appeal: Where’s the Theme?

I recently read almost 10 pages of an appellate brief before learning what the appeal was about. Even then, I did not know why the author thought his client should win.

It took me a little longer to realize that the problem was the brief’s lack of a theme. There was no underlying focus or theory of the case that came through, at least not clearly.

Senior Circuit Judge Ruggero J. Aldisert’s treatise, Winning on Appeal: Better Briefs and Oral Argument, describes the brief’s theme as its unifying focus and heart. It answers the question, “What in the heck is the message?!.”

Judge Aldisert explains that this unifying focus sets the flavor and mood of the argument. “It directs the judge’s attention immediately to where the trial court’s error took place and explains straightaway why the trial court was wrong or, when used by the appellee, why it was right. It tells the appellate court what relief you want.”

You are shooting for an elevator pitch. Could you tell a lay person in a few sentences what the case is about, what relief you want, and why you should get it?  That is your theme.

You sometimes have choices. In a recent appeal, I was blessed with a sympathetic plaintiff, favorable statutory language, and abundant case law construing the statute my way. What is the theme? Should the focus be on the parties, thus pitting a greedy defendant against the sympathetic plaintiff? Or is the focus on the rules, pitting the defendant against the statutory text and stare decisis?

It was a tough call. In the end, I chose to focus on the statute’s text and the decisions construing it favorably. This was a judgment call based on my knowledge of my audience. The South Carolina Supreme Court has held, “Legislative intent, once determined, is ‘permanently settled’ absent subsequent action by the General Assembly to effect a change in the statutory law.” Wehle v. The South Carolina Retirement System, 363 S.C. 394, 403, 611 S.E.2d 240, 244 (2005).

I have my fingers crossed that stare decisis will win the day.

How do you all decide on a theme for your appeal? Please leave me a reply or reach me here.



Leave a Reply