Paralyzed by that white screen mocking you? Close your eyes for a few minutes and let this piano massage your brain. Then write your appellate brief like Earl Fatha Hines moseys along the Santa Fe Trail.
We are nothing if not current.
An article published in 2003 about effective subheadings, available here for the clicking, was referenced at the top of a “legal writing” Google search I just did. Authors Kara Thompson and Zach Brez for the Writing Center at the Georgetown University Law Center, did a fine job in this short piece explaining the importance of the “point heading.” (Except please don’t make subheads all caps; typical sentence style, boldfaced, is better.)
Don’t be lazy about drafting the subheadings. Sometimes they will be the most important part of your brief.
Conventional wisdom says to limit your subheadings to one sentence. But that’s not necessarily best practice.
Have you ever encountered a cold court? Sometimes judges don’t have the time or the desire to read your brief thoroughly, or at all, before your case is called. I’ve watched judges leaf through my motion or my brief during oral argument. I want that judge to understand my positions. One-sentence subheadings don’t always accomplish that.
So by all means, make those subheads incisive and argumentative, and a little bold. And don’t be afraid to give the judge more help understanding your positions with a longer subheading.
The Appellate Lawyer Representatives’ Ninth Circuit Practice Guide is available for the downloading from the Ninth Circuit’s web site. It’s a how-to for preparing and filing a brief in the federal appellate court out yonder in California. But it’s chock full of good tips no matter what jurisdiction you find yourself in.
You’ll want to look at the Top Technical Flaws In Briefs. Some of these are more than just technical. Don’t make one of these head-shaking mistakes.
Peggy Lee Hall claimed she was injured when she slipped on ice in a parking lot owned by Naper Gold Hospitality LLC. She sued Naper, but the company got summary judgment because Hall did not show facts that there had been an unnatural accumulation of ice.
Hall appealed Naper’s summary judgment. But the Second District Illinois Appellate Court dismissed the appeal “because of the flagrant and, frankly, appalling violations of supreme court rules committed by plaintiff’s [Hall] attorney … and his law firm … in the handling of this appeal.”
These were Hall’s violations:
• Hall’s statement of jurisdiction had “nothing whatsoever to do with the instant appeal.”
• The original statement of facts had been pasted into Hall’s brief from an appeal in a different case. And when Hall’s lawyer amended the statement of facts, he (1) filed it without asking for permission to do so, and (2) what he did file “barely acquaint[ed] this court with the procedural history of the case or the issues involved.”
• Illinois Supreme Court “Rule 341(h)(3) requires appellant [in this case, Hall] to include a ‘concise statement of the applicable standard of review for each issue. with citation to authority.’ … Plaintiff’s brief violates this rule in that nowhere is a standard of review set forth.”
• These violations “came on top of plaintiff’s filing of a noncompliant appendix.” The appellate court twice ordered Hall’s lawyer to file the appendix, the second time under threat of dismissal of the appeal.
• Hall’s legal argument contained insufficient citation to supporting authority.
The appellate court acknowledged the harshness of its ruling, “but where the jurisdictional statement and the statement of facts do not even pertain to the case on appeal but were copied wholesale from an unrelated brief, where the brief contains no standards of review, and where, most important, plaintiff’s arguments are conclusory and not supported by any authority, we have no choice but to strike the brief and dismiss the appeal.”
Read the whole case, Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151, by clicking here.
These two tips are from Ross Guberman, the president of Legal Writing Pro and the author of Point Made: How to Write Like the Nation’s Top Advocates. Ross also is an Appellatology panelist. His short bio is here.
These Two Tips, with examples, are drawn from the brief for the states signed by Paul Clement in the “Obamacare” case.
Use more enumerated lists, and not just in your introductions and preliminary statements. For example:
The federal government attempts to sidestep the tax power problem it would create by insisting that the Court has “abandoned the view that bright-line distinctions exist between regulatory and revenue-raising taxes.” … But that is doubly irrelevant. First, there is no analogous doctrine under which Congress treats penalties as taxes . . .
To add speed to your writing and to project confidence, change every “however,” “nonetheless,” or “nevertheless” to “but” or “yet.” For example:
The modern commerce power is a broad one, as there is little left of the “distinction between what is truly national and what is truly local” under the Court’s present-day notions of “commerce.” … But even as the Court has expanded its conception of “commerce,” it has not wavered from the notion that the power to “regulate” is the power to prescribe rules for commerce, and it has never suggested that power includes the power to compel the existence of commerce in the first place.
Ross put 140 comments on the Solicitor General’s “Obamacare” brief. They’re all right here.
Always thinking about you and devising unique reading and viewing experiences for our audience, Illinois Appellate Lawyer Blog announces a new series:
♪♪♪ Two Tips ♪♪♪
Two Tips, offered by legal writing and strategy experts, will suggest ways you can improve your brief writing. The tips will be in various formats – written, podcast, video, extra sensory perception, Vulcan mind meld.
Two Tips will appear at random times according to a strict schedule. If you have two tips that might interest Illinois Appellate Lawyer Blog readers and viewers, shoot me an email and we’ll make arrangements for you to appear, or write, or sing, or however you want to transmit the information.
We start now.
These two tips are from Ken Abraham. Ken has been practicing law since 1970. He was an associate judge in DuPage County, Illinois for 15 years. Ken is in private practice now and is a mock judge on the Appellatology panel. You can see a fuller bio for Ken here.
Carefully review the trial court’s ruling, whether oral or written. Some judges say things just to placate the unsuccessful party. Others comment for the sake of appellate review to try to establish that they have considered all the law and evidence. Often a misstep is made.
One example is reciting the wrong burden of proof, or using words like “it is clear,” thus suggesting (unintentionally) that the judge employed a clear-and-convincing standard when it’s not applicable.
Pay close attention to what the trial judge does not state. Sometimes a key point goes unmentioned. Early in my judicial career I wrote an opinion in a divorce case. After affirming on all other grounds, the appellate court stated it was not sure if I had considered the benefit to the husband of the use of the use of a business vehicle.
In fact I had considered it, but I did not mention it is my ruling. The appellate court adjusted the final numbers. I’m certain that change would not have been made had I been more thorough in my written opinion.
Remember the old saying: Trial courts look for justice. Appellate courts look for error.
Bravo to Wayne Schiess for his candid and succinct seven suggestions for improving your writing. The title of the series, “Improving Your Writing Throughout Your Career,” speaks to one of the important themes every lawyer and writer should accept. Legal writing is a process, not an event, requiring continual refinement throughout your career.
A writer does not peak in the sense that an athlete might. Good writers know they can always get better, and that the improvement process is a career-long journey.
Wayne’s seventh suggestion is especially near to my heart ― accept critique. That’s a lesson I learned about a hundred years ago as a young associate at Big Firm. Today I run a service called AppellatologySM. We’re devoted to helping lawyers improve their appellate briefs. We do that by offering professional advice on how the persuasiveness and readability of your appellate brief can be improved. Our panel of senior lawyers, legal writing experts, retired judges, and scholars conference your brief online, so you can revise it before you file it. You can read more about AppellatologySM by clicking here.
And you can read Wayne Schiess’s seven suggestions at his most excellent blog, Legalwriting.net, by clicking here.
Guilty as charged. We’re obsessed with good writing and engrossed by lucid argument. Superior writing plus absorbing argument gives us the Ahhhhh of the first cup of morning coffee.
Appellatology is great legal thinkers and writers devoted to helping lawyers write better briefs.
How do we do it? Our panel of mock judges ― senior lawyers, scholars, retired judges, and legal writing experts ― analyzes your draft and confers with you and other mock judges, and tells you how to improve it. We answer your questions, discuss your issues, and give you our independent evaluations. And it’s all done online without the hassle, cost, and expense of leaving your office.
Why should you do it? Because most appeals are decided on the briefs, before you ever set foot in the courtroom. So your brief has to make your case. If your case is worth appealing, or defending on appeal, you should know whether your brief does the job it must ― before you file it.
Click here to learn more about Appellatology and how to improve your chances on appeal.
Illinois has adopted public-domain citation for all cases filed on or after July 1, 2011. The Illinois Supreme Court has amended its Rule 6, which now also requires pinpoint citation to an assigned paragraph number. Your memorandum or brief may contain a citation to West’s North Eastern Reporter or Illinois Decisions, but those citations will be neither required nor alone sufficient. The official reporter — which we’re accustomed to citing as “Ill. 2d” or “Ill. App. 3d” — is going extinct for cases filed after July 1st.
So what’s a Westlaw researcher to do? A Westlaw telephone researcher reported the company is working on paginating in accord with the public domain versions. No word yet on when the new pagination will be available on Westlaw.
According to the revised Rule 6 comments, here’s how the new supreme court cite should look: People v. Doe, 2011 IL 10234. A pinpoint cite to an appellate court opinion should look like this: People v. Doe, 2011 IL App (1st) 101234, ¶ 15. The “1st” parenthetical refers to the First District Appellate Court, so newly filed appellate opinions will require reference to one of the five appellate court districts. (I wonder why. The Illinois appellate courts are a unified system. Each opinion, no matter which district issues it, should have equal precedential value.)