Virginia Bar: How to Ruin an Appeal Brief

The Virginia State Bar’s handbook on appellate advocacy outlines “10 Ways to Ruin a Perfectly Good Brief.” The tips are excellent suggestions on what to avoid:

no_shortcutsTake shortcuts – writing a persuasive appeal brief requires discrete steps such as brainstorming, researching, more brainstorming, outlining, writing, revising, and cite checking. Skipping or neglecting a step hurts.

An earlier post of mine elaborates or how the madman, architect, carpenter, and judge play separate roles in writing and editing a brief. 

Keep the Court in suspense – a brief is not a mystery novel. Consider adding an introduction or beginning summary so that the judge understands the case in a minute or less.

The Fall 2013 edition of “The Scrivener,” from Scribes – The American Society of Legal Writers,” makes the same point. It cites Kurt Vonnegut’s advice for writers to give their readers as much information as possible as soon as possible.

Argue too many issues – “If you are not going to win on your strongest points, then you will certainly lose on your weaker ones.” “Excess argument dilutes your brief and erodes your credibility.”

Chief Justice Toal of the South Carolina Supreme Court makes the same point, cautioning lawyers to lead with their best arguments and leave the rest out.

Ignore the Other Side’s Best Arguments – Ignoring the arguments against you suggests that you can’t rebut them or are not clever enough to see them coming.

Judge Posner has likewise criticized this practice — using photos.

Call opposing counsel names – it reflects more on you than them.

Repeat yourself – some lawyers wrongly advocate telling the court what you are going to say, say it, and then tell the court what you said. Result: the brief is about five times longer than need be.

Avoid nominalizations –  avoid transforming verbs into nouns. Lawyers use an “ion” noun when a strong verb will do. No one evaluates. They all make evaluations.

A video on these “zombie nouns” is available here.

Use too many footnotes – “If it is not important enough to go into the text, it is not important enough to go into the brief.” Exceptions are for record cites and for minor subjects that you must address out of candor to the court.

Quote with abandon – block quotes are hard to read, and so are often not read. Worse yet is the “[a]ckward bracket and . . . ellipse technique . . ..”

Take unreasonable positions – “The most elegant argument in the world will not do you any good if you advance it in support of an untenable position.”

Anyone have other tips or pet peeves to add? Please leave a reply.

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