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Legal Writing


 
 

The Appellate Brief

 

In General

  1. Purpose

    The purpose of an appellate brief is explain why the lower court’s decision was erroneous (for the petitioner/appellant) or why it was correct (for the respondent/appellee). It is an advocacy paper, so it must be persuasive on every issue of fact and law.

  2. Audience

    The audience is one or more judges who are informed and intelligent. Judges have a support staff of clerks and staff attorneys who research the issues fully and provide independent analysis, so the brief must address every issue.

  3. Approach

    When approaching an appellate brief, use the same general steps as outlined for the legal memorandum (see above). However, focus on the following areas in greater detail:

    1. Determine the standard of review

      Every appeal must have a standard that the appeals court reviews the decision from below. For example, a federal circuit court reviews a district court’s legal conclusions de novo.

    2. Identify the necessary conclusions

      Determine what conclusions of fact and law the court must reach to rule in your client’s favor. These determinations will provide an outline of the structure of the brief.

  4. Notes on the appellee’s brief

    The appellee’s goal is to affirm the correctness of the decision below. The appellee’s brief is written only after the appellant’s brief is submitted to the court.

    1. Address the same issues the appellant addresses

      Raise new issues only if the appellant so fundamentally misunderstands the case or misrepresents the issues that you cannot brief the case without raising new issues.

    2. Draft a new statement of facts

      1. Do not rely on the appellant’s statement of facts. Draft your statement based on the record.

      2. The differences between the appellant’s and appellee’s statement of facts should be subtle, unless there are incorrect facts in the appellant’s brief that require correcting.

      3. Emphasize areas favorable to the appellee that the appellant may have glossed over.

    3. Write affirmatively

      Do not write defensively simply because your goal is to defend the decision below. For example:

      • Defensive sentence: “The record does not demonstrate the errors of law alleged by the appellant.”

      • Affirmative sentence: “The record supports the Court’s conclusion.”

  5. Formatting

    Always read the court’s formatting rules, as every court has its own local rules for formatting. Some require text to be in 14-pt. font, some require 12-pt. font; some courts require the text to be aligned along the left side of the page, others require it to be justified. A court will not accept a brief that contains improper formatting.

  6. General tips

    1. Brief means brief

      Write as concisely as possible. Judges are not impressed by length. In addition, key arguments will be lost in myriad words. Only in exceptional circumstances should a brief exceed 20–25 pages.

    2. Maintain the same train of thought

      Think of a brief like a math problem. A mathematician would say “1 plus 2 equals 3,” not “1, the first positive whole numeral, as opposed to a fraction or negative numeral; plus, a word representing the mathematical . . .” Likewise, a brief must read like a math problem and follow each point to completion with logical simplicity.

    3. Transitions

      Each paragraph should have relevance to the prior thought. Include signal words such as “First,” “Therefore,” “In addition,” “Similarly,” “However.”

  7. Sections

    A brief is made up of:

    1. Table of Contents

    2. Table of Authorities

    3. Jurisdictional Statement

    4. Statement of the Issues

    5. Statement of the Case

    6. Statement of the Facts

    7. Summary of the Argument

    8. Argument

    9. Conclusion

 
 

Table of Contents

The Table of Contents should reference the first page number of all sections of the brief including all point and subpoint headings. Use dot leaders (.....) to connect the section to the page number.

 
 

Table of Authorities

The Table of Authorities should reference the page of every citation (both long form and short form) used anywhere in the substantive portions of the brief.

  1. For authorities that are cited extensively, use the abbreviation passim rather than list the page number.

  2. Each category of sources should be listed separately (e.g., list all cases under one heading and all statutes under another heading).

 
 

Jurisdictional Statement

The Jurisdictional Statement should provide the statute or other authority and any essential facts that grants the court the jurisdiction to hear the case.

Sample Jurisdictional Statement:

Petitioner seeks review of the order of the Board of Immigration Appeals dismissing her appeal. This Court has jurisdiction to hear an appeal of a decision of the Board of Immigration Appeals pursuant to 8 U.S.C. § 1252 (2002). Petitioner filed her timely appeal of the Board’s May 3, 2003, decision on May 7, 2002. See 8 U.S.C. § I252(b)(1) (“The petition for review must be filed not later than 30 days after the date of the final order of deportation.”).

 
 

Statement of the Issues

The Statement of the Issues serves the same purpose as the Questions Presented in the legal memorandum. Therefore, use the same rules and take the same approaches in framing the issues.

 
 

Statement of the Case

The Statement of the Case should summarize the procedural details and any relating facts. Summarize only those procedural details that are relevant and material to the appeal.

Sample Statement of the Case:

On April 9, 2002, Petitioner, being accused of Conspiracy to Commit Bid-Rigging, 15 U.S.C. § 1, waived prosecution by indictment. On April 30, 2002, Petitioner pled guilty to 15 U.S.C. § 1. On October 18, 2002, District Judge Andrew Hand of the United States District Court for the District of Connecticut sentenced Petitioner to a term of imprisonment not less than 12 months but no more than 26 months. It is from that final order and judgment that Petitioner appeals to this Court.

 
 

Statement of the Facts

Like the Statement of the Facts for a legal memorandum, the Facts in a brief should tell a story to a reader unfamiliar with the events in question.

  1. Provide an introductory paragraph

    The first paragraph should outline the facts to follow.

  2. Include the page in the record

    After each sentence, include the page in the record where the fact is stated (e.g., R. 4).

  3. Minimize, but do not exclude, negative facts

    Mention both favorable and unfavorable facts. When presenting the facts, take special care to prevent these facts from taking precedence in the Statement. Always surround unfavorable facts with favorable ones.

Sample Statement of Facts (for Petitioner in a civil rights action):

On May 22, 1990, Appellee Chad Howard, a Baltimore County Police Officer, struck and killed a 19-year-old pedestrian, Michael Henny, with his patrol car at the culmination of a high-speed chase. (R. 23, 33-35). This death gave rise to the present action.

On the evening of May 22, Officer Howard responded to a report of domestic violence at 122 Main Street. (R. 34). Upon arriving at the address, Officer Howard witnessed a man run from the home and get into his car. (R. 45). Officer Howard turned on his siren and emergency lights “so as to try to stop the guy from driving away.” (R. 98). This technique did not succeed, and a high-speed chase ensued. (R. 102).

The chase occurred at night on residential streets. (R. 88). Officer Howard’s patrol car reached speeds of 100 miles per hour in an area with a posted speed limit of 25 miles per hour. (R. 52). Officer Howard admittedly did not attempt to receive assistance from fellow officers. (R. 34). Instead, he willingly conducted the chase alone. (R. 53).

The chase involved 33 minutes of high-speed pursuit, during which several stoplights and other traffic rules were ignored. (R. 43, 109-111). When Officer Howard turned onto South Street, he lost control of his vehicle and drove onto a sidewalk where Michael Henny was standing with friends. (R. 4). Officer Howard’s 4,000-pound patrol car struck Mr. Henny in the torso (R. 99). The force of the impact hurled Mr. Henny more than 70 feet down the road. Mr. Henny suffered a fractured skull upon landing and was killed instantly. (R. 210).

In conducting the high-speed chase, Officer Howard directly violated the policy of the Baltimore County Police Department. (R. 55); see County Reg. 2321-5(a). Officer Howard never communicated with his supervisor as he was required. (R. 210). Additionally Officer Howard admitted that probable cause did not exist to arrest the man he was chasing, although he did state that he had “reason to believe” the man had committed a crime. (R. 45).

Michael Henny’s family filed suit alleging deprivation of their son’s Fourteenth Amendment due process rights in violation of 42 U.S.C. § 1983. The suit was commenced in the Baltimore County Superior Court against the Baltimore Police Department and Officer Howard. The Police Department and Officer Howard immediately moved for summary judgment on numerous grounds. (R. 323-35). The Court granted summary judgment for the Police Department and Officer Howard, finding that the Department and Officer Howard were entitled to qualified immunity under Monell v. New York, 436 U.S. 658 (1978). It is from that decision that the Appellant appeals.

 
 

Summary of the Argument

The Summary of the Argument should provide a concise summary of the factual and legal arguments contained within each heading and subheading. Although the Summary of the Argument appears before the Argument section, it should be written after the Argument is completed.

Sample Summary of the Argument (for Petitioner in a civil rights action):

The prosecution failed to establish each element of the offenses charged in Counts Three and Four of the Indictment. No rational jury could conclude that the government met its burden with respect to the defendant’s involvement in the enterprise or the conspiracy. Likewise, no rational jury could conclude that the government met its burden with respect to the motive requirement in Count Three. Consequently it was an abuse of discretion to deny the defendant’s Rule 29 motion for judgment of acquittal.

The District Judge failed to properly charge the jury with respect to the law regarding the Third Count of the Indictment. The Judge had an obligation to instruct the jury on the Turkette definition of an enterprise. United States v. Turkette, 452 U.S. 576, 583 (1981). Because this failure was dispositive of the outcome, it constitutes reversible error.

 
 

Argument

Like the Discussion section of a legal memorandum, the Argument section makes up the heart of the brief. This is the persuasive section of the brief, so every word should function persuasively.

  1. Analogize favorable law; distinguish unfavorable law

    Explain to the court why law that assists your case applies. Explain why law that hurts your case does not apply. For example, if a prior judicial decision is legally identical but unfavorable, explain why the facts are distinguishable. If the bulk of existing law is against your side, attempt to distinguish your case as unique and worthy of an exception.

  2. Point and subheadings

    Each point heading should be in ALL CAPS and centered in the page. Subheadings should be underlined or italicized.

Sample Argument:

  1. The district court abused its discretion by failing to hold an evidentiary hearing to determine if counsel informed Mr. Simmons of the maximum sentence he would face if convicted at trial.

    Appellant, Mr. Simmons, was denied his Sixth Amendment Right to Counsel. The Sixth Amendment of the United States Constitution guarantees every accused individual the right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 684 (1984).

    To maintain a claim of ineffective assistance of trial counsel in a criminal case, a defendant must establish that “counsel’s representation fell below an objective standard of reasonableness,” Id. at 688, and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694; see also United States v. Vegas, 27 F.3d 773, 777 (2d Cir. 1994).

    1. Mr. Danielson’s representation of Mr. Simmons fell below an objective standard of reasonableness.

      An attorney who grossly underestimates the potential sentencing exposure violates the objective standard of reasonableness required under the first prong of the Strickland test. See United States v. Day, 969 F.2d 39, 44 (3d Cir. 1992) (trial counsel is deemed ineffective when defendant was given “substandard” advice pertaining to potential sentence exposure during plea negotiations). In Day, the defendant’s counsel informed the defendant that the maximum sentence he could face was approximately 120 months, when the sentence actually could have ranged from 262 to 327 months. Day, 756 F.3d at 380. Consequently the Court concluded that the defendant was denied his Constitutional right to counsel. Id. Similar to Day, Mr. Danielson, the attorney in the present instance, underestimated the maximum sentence by 30 months. Mr. Danielson himself admitted this in stating that he “made a clerical error and read the wrong law.” (R. 35). The gravity of this “clerical error” relates to a fundamental decision: whether to accept a plea bargain. Because of the great disparity between the sentence Mr. Simmons actually faced and the sentence Mr. Danielson told him he faced, albeit less then the disparity in Day, constitutes objectively unreasonable representation.

    2. But for Mr. Danielson’s ineffective assistance, Mr. Simmons would have pursued a plea bargain.

      Mr. Simmons suffered direct and consequential harm as a result of Mr. Danielson’s ineffective assistance. It is well-established that a defendant must be accurately and adequately informed of potential sentence exposure and the importance of cooperating with the government so that they may pursue all options at their disposal. In United States v. Gordon, the Court noted that a defendant is prejudiced when his attorney fails to give “accurate information upon which to make his decision to pursue further plea negotiations or go to trial.” 156 F.3d 376, 380 (2d Cir. 1998).

      Here, Mr. Simmons unambiguously stated that he would have accepted the government’s plea bargain offer of 120 months imprisonment rather than proceed to trial had he received adequate assistance of counsel. (R. 35). Like in Gordon, this caused actual harm to the defendant. Mr. Simmons was sentenced to 200 months imprisonment, 80 months more than the government offered. Consequently the second prong of the Strickland test has been satisfied here because there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Accordingly Mr. Simmons’s conviction must be overturned.

 
 

Conclusion

Use the Conclusion section as another opportunity to persuade. Do not simply state “for the foregoing reasons, the decision below should be upheld [or reversed].” Instead, in three to five sentences, reiterate the key reasons why the decision should be upheld or reversed.