Julie Brook, Esq., reprinted with permission from CEB
An appellate brief is a way to convey the facts, legal questions, law that you want the court to apply, and how you want it applied. It’s also an exercise in persuasion, and should be written for readers who have only a short time to read it.
Appeals are won by convincing the court that an argument is valid, not by impressing the justices with your brilliance. Keep it simple and easy to understand by using these 12 basic principles for writing an effective appellate brief:
- State the facts briefly; be complete yet concise.
- Make arguments clear and forceful; respect the court and precedent.
- Write legal arguments that reflect thoughtful and sound analysis.
- Give page references to the record. In civil appeals, you must support each factual statement in the brief with an appropriate and specific reference to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).)
- Confine the statement of the case to matters in the appellate record. (See Cal. Rules of Court, rule 8.204(a); Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869.)
- Don’t exaggerate the facts, law, or degree of supporting authority.
- For criminal appeals, include every arguable issue in the case, particularly federal constitutional issues that may be raised in later federal appeals or habeas proceedings. For civil appeals, it’s just the opposite: The client has no constitutional right to effective assistance of counsel and, as a matter of strategy, you shouldn’t raise every issue but should instead focus on the most important ones or risk diluting your arguments.
- Omit theoretical dissertations on abstract principles of law; limit the brief to matters necessary to present the client’s case properly.
- Avoid repetition; state it clearly the first time and don’t waste the readers’ time by repeating it.
- Avoid statements that impugn the motives of a trial judge or anyone else unless absolutely necessary (see Ramirez v. State Bar (1980) 28 Cal.3d 402).
- Have a separate heading for each argument; the reviewing court may consider an argument to have been forfeited if it’s set out in a footnote or otherwise not clearly denoted (In re David L. (1991) 234 Cal.App.3d 1655, 1661).
- If possible, don’t limit the brief to one issue. No matter how strong the point, you should have a fallback argument.
These tips are from CEB’s Appeals and Writs in Criminal Cases. For discussion of civil appeals and writs specifically, turn to CEB’s California Civil Appellate Practice and California Civil Writ Practice.