by Dennis Owens1
Appeals are won or lost in the briefs. The rules provide the framework, the standard of review controls the method of decision, and the record provides the fertile grounds for relief. You need to know them all. But writing the brief of the appellant is the most important task in pursuing an appeal. You get the job done in the brief – or you lose the appeal.
The importance of the brief is magnified by the fact that the Eighth Circuit decides more than 50 percent of its cases without oral argument. But even in those instances where you have an opportunity to present an oral argument, you will face a panel in this circuit that has carefully read the briefs. If the briefs have properly served their function, the members of the panel will have formed definite opinions about how they should decide the case. Oral argument is your chance to answer questions that your brief has raised in the minds of these three judges. If a brief is strong, clear, accurate, not overlong, and well-informed, it may serve as the outline for the court's opinion. You should strive to write a brief that good.
A. Appellant's Brief
In an appeal in the Eighth Circuit, the rules2require an appellant's brief and allow an appellee's brief and a reply brief. The appellant must file an initial brief.3The court will dismiss the appeal if an appellant fails to file a brief timely.4Further, an attorney who files an appeal but then fails to present a brief is subject to the court's discipline "for failure to comply with" the Federal Rules of Appellate Procedure or any rule of the court.5Eighth Circuit Rule 3C empowers the clerk of the court to dismiss an appeal for failure to prosecute after notice and opportunity to remedy. Note carefully this provision: "The dismissal of an appeal will not limit the court's authority to take disciplinary action against defaulting counsel in appropriate cases." This might include imposing monetary sanctions against an attorney. Of course, that lawyer would also be violating professional ethics6and possibly committing legal malpractice.
B. Appellee's Brief
Must the respondent always file an appellee's brief? Counsel for the appellee may be tempted to forego it when the appeal appears to be frivolous or moot.
On one hand, Rule 31(a) states that "[t]he appellee must serve and file a brief within 30 days after . . . service of the brief of the appellant." However, the best reading of that rule is not that it is requiring the filing of this brief, but only requiring that it be timely if filed. The subdivision is entitled "Time to Serve and File a Brief." Rule 28(b) seems to assume that the appellee is required to file since its brief "must" contain certain provisions.
On the other hand, Rule 31(c) permits an appellee to move for dismissal if the appellant does not timely file a brief, but does not authorize any similar action if the appellee fails to file a brief.
Nevertheless, counsel for the appellee always should file a brief. Otherwise, Rule 31(c) bars an appellee from participating in oral argument without specific leave of the court. More urgently, the court may well overlook some important flaw in the appellant's presentation of the facts, law, and logic. Counsel should not rely on the principle that the appellate court will affirm a district court judgment for any reason that is fairly supported by the record.
C. Reply Brief
The appellant may file a reply brief in response to the appellee's brief. A reply brief is not required.7When choosing not to file a reply brief, counsel should promptly write a letter to the clerk disclosing this decision. This may expedite the submission of the case.
Do not file a reply brief for the sake of having the last word. That is not thoughtful or effective advocacy. In most cases, the initial brief covered all the issues and arguments; thus, the reply brief is a needless burden on the court. File a reply brief only if the appellee has built an effective argument upon a case or statute that you did not address, the appellee has raised a jurisdictional attack you had not anticipated, the appellee has misstated a significant fact or presented an argument on matters not in the record, or relevant cases have been handed down since your opening brief. (This last situation can also be addressed by a letter to the clerk.)
D. Supplemental Briefs
After the reply brief, "no further briefs may be filed" except with leave of the court.8On rare occasions, the court may ask for supplemental briefs when it wishes to have further discussion of a particular issue.
E. Multi-Party Appeals
Multiple parties may each file a separate brief or may file a joint brief.9When all appellants are represented by one attorney, they should file a joint appellants' brief. The same is true for appellees. Joint briefing is permitted in cases consolidated for the first time for appeal.10
The filing of a separate brief for each of several appellants is rarely the best advocacy if the parties' interests are harmonious. The court is not more likely to be persuaded by multiple briefs arguing for the same result. Joint briefs are also less costly for the clients, of course. If the co-parties' interests are adverse to one another, of course, the attorney may not ethically file a joint brief.11
F. Cross-Appeals
When the appellee also files a notice of appeal, the appellee becomes the cross- appellant. (The cross-appellant may be properly called merely "the appellee" at all times). This appellee may file a fourth brief: an appellee's reply brief.12The sequence is this: Appellant files the initial brief; appellee files a brief that both responds to the appellant's brief and raises the cross-appeal; appellant files a reply brief that responds to the cross-appeal and that may reply to the appellee's brief; and appellee may file a reply brief to the appellant's second brief, but only on the cross-appeal issues.
A. Generally
When the Eighth Circuit clerk's office receives the certified copies of the notice of appeal and docket entries from the district court, the clerk will send a form letter to the lead counsel for the appellant, with copies to all other counsel. This letter will indicate the Eighth Circuit case number, outline certain requirements, state the filing schedule, and specify immediate requirements. The letter also provides the court's website: http://www.ca8. uscourts.gov. Carefully read this letter, the enclosed material, and the rules to which it refers. Set up a calendar system for the required tasks.
The brief of the appellant is due within 40 days of the filing of the certificate of record.13The joint appendix is due on the same date. The brief of the appellee is due 30 days after the appellant files its brief.14The appellant may (but is not required to) file a reply brief within 14 days of the filing of the appellee's brief.15Counsel must mail their brief on or before its due date. A brief postmarked on its due date is filed timely.16Ten copies and the original of a brief are required by the Eighth Circuit in attorney-handled cases.17
Generally, do not use footnotes in an Eighth Circuit brief. We agree with Justice Breyer that if a point or fact is important enough to include in a brief, it is important enough to be in the text. Bryan Garner, a nationally-known authority on legal writing, recommends placing case citations in footnotes so as to not clutter up sentences and break their flow. But some judges of this circuit read the brief on a computer. Footnotes require a reader to scroll down and back up, a process that breaks the flow for sure. Other circuit judges object to footnotes in briefs as a matter of principle. Footnotes, therefore, are not recommended in Eighth Circuit briefs. If you do use footnotes, they must be in the same font size as the text.18
B. Length and Color
Length restrictions are rigidly enforced by the Eighth Circuit. There is no driving just a few miles per hour above the speed limit. If you exceed the limits, you can plan on editing, recopying, and rebinding all of the copies of your brief for re-submission.
Length is measured either by number of pages, by number of words, or by number of lines. The following do not count toward the 30-page limitation: "corporate disclosure statement, table of contents, table of citations," oral argument request or waiver, or addendum containing the relevant "statutes, rules, or regulations, and certificates of counsel."19
When measuring brief length by number of lines, the text must be in monospaced face with not more than 10½ characters per inch.20Examples of monospaced typeface are WordPerfect for Windows 8.0 Courier font face and New font face in font size 12 point. An example of an acceptable proportional space typeface is WordPerfect for Windows 8.0, Times New Roman font face in font size 14 point, which contains serifs. Use Arial font face in font size 14 point only in headings and captions.
When measuring brief length by word or by line count, "[h]eadings, footnotes, and quotations count toward the . . . limitations."21
Eighth Circuit briefs must contain a certificate of compliance,22which recites the exact number of words or number of lines of type in the brief, and the name and version of the word processing software used in its preparation.23
Each brief must be accompanied by a 3½-inch diskette containing the full text of the brief. Label the diskette with the case name and number and the name of the brief. Counsel "must certify that the diskette has been scanned for viruses and that it is virus-free."24Send a copy of the diskette to opposing counsel also. The clerk's office has a grand collection of computers, including some vintage Commodores and Osborns, so they can study and use every diskette. They always check the page, word, and line count. One page or one word over the line, and back your brief comes. Each brief has a prescribed color for its cover, as indicated in this chart.
C. Eighth Circuit Briefs25
Checklist of the Contents of the Appellant's Brief.26
1. Summary of the case and request for oral argument or waiver. 8th Circuit Rule 28A (f)(1).
2. Corporate Disclosure Statement. Rule 26.1.
3. Table of Contents. Rule 28(a)(2).
4. Table of Authorities. Rule 28(a)(3).
5. Jurisdictional Statement. Rule 28(a)(4).
6. Statement of the Issues. Rule 28(a)(5); 8th Circuit Rule 28A(f)(2).
7. Statement of the Case. Rule 28(a)(6).
8. Statement of the Facts. Rule 28(a)(7).
9. Summary of the Argument. Rule 28(a)(8).
10. Argument and Applicable Standard of Review. Rule 28(a)(9).
11. Conclusion. Rule 28(a)(10).
12. Certificate of Compliance. Rule 32(a)(7)(c).
13. District Court Opinion/Administrative Agency Decision on review. 8th Circuit Rule 28A(b)(1)(i).
14. Addendum (15-page limit). 8th Circuit Rule 28A(b)(2).
A. Generally
To write a winning brief, appellate counsel must know and comply with the applicable rules, master the record, discern the viable issues, identify the portions of the record that pertain to those issues, study the law that applies to these issues, select the strongest issues, and state them in persuasive fashion.
B. Assemble the Needed Materials
As you prepare to develop the brief, gather the items you will need: transcripts, docket sheet of the district court, complaint, answer, motions, orders that raise appealable issues in the judgment, notes of the trial attorney on possible issues on appeal, Trial Briefs and Memoranda of Counsel filed in district court, the Federal Rules of Appellate Procedure, and the Eighth Circuit Rules.
C. Review the Rules
Nearly all lawyers handling appeals in the Eighth Circuit also pursue appeals in state courts and in other circuits. Do not depend on your unaided memory. When you accept the case, re-read the Federal Rules of Appellate Procedure and the Eighth Circuit Rules. Calculate your deadlines, figure shorter deadlines for yourself, and put all of them on your working calendars. Make a contents checklist.
The staff of the Eighth Circuit clerk's office is quite helpful. Do not hesitate to call and ask for help in understanding any rule and properly applying it to your case. But always read and study the rules before you call. They might not appreciate being asked to tell you what you could have easily learned by reading the rules yourself first. The clerk's telephone number is (314) 244-2400.
D. Study the Record and the Trial Lawyer's File
Begin your study of the record by reviewing the final judgment or the order from which the appeal is taken. Appellate courts do not decide abstract legal questions. They decide whether the trial court erred in entering this particular judgment or in deciding some earlier motion that led to that judgment. So you must know exactly what was decided in the judgment. You will need to know on appeal the factual issues resolved in the lower court's order, because the appellate court will presume that these findings are correct.
If you were not the trial lawyer, use the trial lawyer's file as a guide through the transcript. Do not assume that every proposed issue was, in fact, preserved on the record. Read the transcript twice. Read once to know what happened. Read a second time to locate and mark the portions that will be crucial to the appeal and to strengthen your mastery of those facts. The appellate court usually will not tolerate a lawyer's ignorance of the facts on the basis of "I wasn't the trial attorney."27
The trial lawyer's files should also include some legal research notes, possibly even copies of pertinent cases. Use this resource, but do not depend on it to be exhaustive. It will not be. Study of the suggestions in support and in opposition of motions can be helpful.
E. Identify Possible Issues
As you study the notes, the transcript and pleadings, make a note of any possible issues. Take a brainstorming attitude: use your imagination, do not reject anything at this stage, be open-minded, and think in large, layman's, public policy terms.28
The variety of possible issues are nearly limitless. No complete list could be developed. Nevertheless, here are some basic categories of issues on appeal: the court did not have jurisdiction; the court misinstructed the jury; the court incorrectly applied the law to the facts; the court misapprehended the issue to be decided; the court failed to apply the appropriate law; the court allowed evidence that it should have excluded; the court excluded evidence that should have been admitted; the court disallowed the discovery of evidence that it should have allowed; the court allowed the opposition to make an improper argument to the jury; the court erroneously determined the facts contrary to the evidence; or the jury misconducted itself.
There are many other potential issues, of course.
Issues may be raised on appeal only if they were raised in the district court,29with the exception of subject-matter jurisdiction, an issue that may be raised at any time, including for the first time on appeal.
F. Issue Selection
Consider the appellate judge's perspective. The circuit judges are burdened with reading dozens of briefs and deciding many cases each month.30Ideally, the appellant's brief would concisely set forth only the facts needed for the decision, would state a single issue in fair and precise terms, and would cite one case as dispositive authority. That one case would be the controlling law that should be applied to those facts so as to decide that one issue. The judges hope for clear-cut facts, a straightforward issue, and a controlling case. Try to give it to them.
While you are hoping to make the life of the judges on the court of appeals more pleasant, along comes a real case for you to handle, one filled with many messy facts, raising numerous difficult to grasp issues, and causing legal researchers headaches. Seek to simplify! The function of the brief on appeal is not to serve as a complete history of the case or even a history of the case as it appears in the record. (Be prepared for clients to expect this.) The purpose of the brief is to persuade the appellate court panel that the trial judge erred in a particular decision and that the error was so important that the trial was unfair and the verdict untrustworthy as a result.
There are a number of books which you can study to improve your ability to write an effective appellate brief. I recommend these in particular:
A. Necessary Standard Components
1. The Face Page31
The face page should look like the sample shown to the right.
2. The Corporate Disclosure Statement
This is required.32A non-governmental corporate party must file a statement in its principal brief or its first pleading after the notice of appeal. All parent corporations should be identified and any publicly held company that owns 10 percent or more of the party's stock must be listed.
3. The Table of Contents
There are two approaches. Most advocates prepare a listing of each component with reference to the page number where it begins. Others provide greater detail by listing each issue under the argument heading and listing each argument point under the issue. The latter is worth the additional work.
4. The Jurisdictional Statement
The rule sets out with precise detail the requirements of this statement: 33
(a) the basis for the district court's or agency's subject-matter jurisdiction, with citations to applicable statutory provisions and stating relevant facts establishing jurisdiction;
(b) the basis for the court of appeals' jurisdiction, with citations to applicable statutory provisions and stating relevant facts establishing jurisdiction;
(c) the filing dates establishing the timeliness of the appeal or petition for review; and
(d) an assertion that the appeal is from a final order or judgment that disposes of all parties' claims, or information establishing the court of appeals' jurisdiction on some other basis.
Set forth all of this information in this order.
Do not slight this requirement. Do not delegate this task to a paralegal and then fail to check yourself. The federal courts are courts of limited jurisdiction, and the judges never lose sight of that constitutional fact. The federal courts always inquire as to their jurisdiction carefully, early, and late.
5. The Statement of the Case
This should indicate the nature of the case (criminal, contract, injunction, admiralty, etc.), the course of the proceedings, and the disposition below. The course of proceedings should not include every entry on the docket. When was the initial action filed, in what court, on what basis was it removed, on what motion was judgment entered, or how long did the trial last, before which judge, and when was the judgment entered?
6. The Statement of the Facts
The appellate advocate must perform a balancing act here. This statement must be accurate, concise, and objective. Yet you can use this part of the brief to advance your argument. The court will be annoyed, not persuaded, with your reference within the statement of facts to your client as "a poor widow, innocent of any wrongdoing, who was crushed by the greedy corporate defendant." Get rid of the highly connotative adjectives and adverbs. Instead, focus on choosing the right nouns. Do mention once that your client is a widow. Do mention once that the defendant is a "Dutch insurance holding company with $40 billion in assets." After your first reference to the parties ("Appellant Robert Smith"), do not use the terms "appellant," "respondent," etc., again. Use "the driver," "Mr. Smith," "her husband," and "the injured employee," but be consistent in the use of the descriptions or names.
Test every line and every fact as to relevance to your argument. Usually, this will mean that you will not repeat any dates of procedural steps from the statement of the case. Much of what has happened in the case is simply not relevant to the appellate issues.
In preparing the statement of facts, first and foremost preserve your integrity. Always include the facts that are favorable to your opponent if they are relevant. Do not allow your adversary the opportunity to tell the court that you failed to inform it of some relevant and material fact. If the court comes to doubt your candor in this process, your ability to persuade will be gravely undermined. Appellate judges have stated that an incomplete statement of facts tells them that your case will be a loser when the whole story is known. Some judges say that an unfair statement will prompt them to prove the appellant wrong!
Tell the story chronologically. Never, ever recite the facts in the order adduced at trial, witness by witness. Make the story as interesting as you can. Are you making the judges care about the issues?
Every single sentence in the statement of facts must include a parenthetical reference to the record such as ("Appendix 231") or ("Transcript 6").
Sometimes, a good persuasive approach is to state the facts generally at this juncture and then give more vivid details in the argument. This can give maximum impact to startling or shocking facts. When this approach is used, the detailed recitation must also include the parenthetical reference to the record. Sometimes, despite your best efforts to keep the story interesting, it will begin to bog down in technical detail. Consider simplifying the story here by saving the detail for the argument. There is no requirement to recite every relevant fact in the statement of facts. Judicial opinions often begin with general statements of fact, and then address the precise factual details when discussing individual issues. Follow this lead.
Some commentators say that one wins or loses the appeal with the statement of facts. We think this overstates it. Trial courts seek the truth, but appellate courts seek error. The courts of appeal do not want to re-decide any factual disputes. They want to hear arguments about the law and how it is applied. Nevertheless, the statement of facts can make a compelling case that could cause the court to want to decide for you. Thus, a poorly written statement of facts could be the fatal flaw of a meritorious case.
B. The Argument
1. Developing the Issues
The argument is the very reason that a brief exists. It deserves your greatest attention and care. The argument is the manifestation of your issues. Your work on the argument begins with developing the issues.
A familiar and important rule is that an issue not presented (or presented but not argued) in the initial brief is an issue waived. This is the stage at which to ascertain that all of your viable points are included.
An unfortunate consequence of this rule is that advocates tend to throw in every conceivable error as an appellate issue. Appellate judges learn that a brief with a dozen issues is a brief with no one strong point. Do not use a shotgun approach. Strong points are not bolstered by the addition of weak points; they are diluted by them. Be prepared to toss out the issue that will not be successful.
The development of issues should begin with a listing of all possible points on appeal. Draw upon the post-trial motions, all other dispositive motions from any stage of the proceedings, the trial lawyer's notes, the client's impressions, and your own experience and imagination. You probably will not have the transcript to use at this time. At this stage, brainstorming is the goal. Do not eliminate any idea until the list is finished.
2. Using the Standard of Review
Let your compilation of possible issues rest for a day or so, then determine the appropriate standard of review on appeal for each issue. The bible for this work is Childress & Davis's Federal Standards of Review.
Consider the issue in the light of its standard. Review the cases cited on the issue in the trial court pleadings. Dig up those authorities that you know from similar cases. Would the U.S. Court of Appeals reverse this judgment because of this legal error? Was the trial rendered unfair and its result unreliable by an error in the admission of evidence or instruction of the jury? Was the application of the law to these facts wrong? If the trial judge has made a mistake, was it a crucial mistake? Now is the time to remember that other familiar rule of law: The parties are entitled to a fair trial, not a perfect one. An imperfection is not enough. Was the trial clearly unfair as a result of this error?
3. Ordering the Issues
Some appellate advocates state their issues in the same order as the facts: chronologically. Avoid this approach. State the issues in the order of strength, strongest first. The judges of the court of appeals would prefer that every case have one issue and that the facts have one precedent that applies to them. They are willing to grant relief if that one precedent does apply to the facts as contended. If the point is strong enough, you would need only one to win.
There is an exception to the rule of putting your strongest issue first. If your client prevailed at trial but lost on a technicality with the panel, an attack on that technical point would be the best issue to lead in a brief before the court en banc.
Fear prompts us to include every possible issue. Overcome that fear. Be objective. Ruthlessly pare down the number of issues. Combine points into one issue where appropriate. Consider in isolation each issue's chances for success.
There is no ideal number of points. As the trial transcript grows, the number of possible points grows. Early in his career, the author of this article was appointed to represent two of the five defendants convicted in the longest trial in Missouri history: 10 months and 23 days. It had been the first RICO prosecution in this region. The post-trial motions contained more than 100 points of error – per defendant! Nevertheless, these points were boiled down to five and six issues, respectively, in the two briefs – and those briefs were successful.34
Nevertheless, many judges have expressed their notion that a brief should not have more than three or four issues. This is based, in part, on the idea that few trial judges make more mistakes per trial than that.
4. Writing the Conclusion
Draft the conclusion of the brief before you write the argument. Judges indicate they will often read the summary of the case first, then the issues, then the conclusion. (If there is no summary of the case in a brief, they read the issues and then the conclusion.) Why? Judges want to know what they are deciding and what the appellant wants for relief.
You want to clarify your goal in your own mind before you begin crafting the argument: What do your clients want the court of appeals to do for them?
The conclusion should not be a restatement of the argument. Indeed, Rule 28(a)(10) plainly calls for "a short conclusion stating the precise relief sought." Obey the rule.
5. Writing the Summary of the Argument
Draft this summary before, not after, you write the argument. Use the summary as a tentative outline of your argument. As you develop the argument, you may rewrite the summary several times. The summary can serve to enhance coherence and focus for each point of the argument.
More than once, issues have been abandoned when the summary of the argument has revealed logical flaws in the issue.
Judge Ruggero J. Aldisert has written "that the summary of the argument may be the most important part of the brief."35The rule requires that the summary be "succinct, clear and accurate."36The summary "must not merely repeat the argument headings."37Attempt to use fresh wording for the summary. This is an opportunity to make a good first impression.
6. Writing the Argument
a. Sources
The bibliography reflects some of the very finest entries of the vast literature on good writing for lawyers and on appellate practice in general. Girvan Peck's book, Writing Persuasive Briefs, is a classic. It is full of good advice on every aspect of brief writing from chapters on "Troublesome Pronouns" to "Under-standing Judges." Bryan Garner's four books in the bibliography are three reference books and his "100 Tips" book. This latter volume is jammed with good ideas. The most important is his concept of the deep issue. We have read these books more than once. The material in the American Bar Association's Appellate Practice Manual is now published in Volume 3 of the Litigation Manual. The articles in this are gems of appellate wisdom. All of these books are highly recommended for the appellate brief writer.
b. The Strategy of Persuasive Arguments
Begin with the first draft of the summary of the argument. Make a detailed outline of your argument that reflects this structure. Then make another outline, even more particular and detailed. Each line could be a paragraph topic sentence.
For each point, use a structure of argument:
Remember the judges' viewpoint. They want to decide your case fairly, they want to avoid creating a new rule that could be used in the future in some fashion contrary to how they envision it now, and they want their decision to fit into the framework of the law. Thus, do not emphasize the uniqueness of the facts. If possible, do not announce that your case is one of first impression. Rather, demonstrate how the result you seek is the logical or natural extension of the policy of the law. Thus, your desired result will arise within that framework of the law.
If there is no authority that applies, yes, do admit this. Then approach the case in terms of legal policy, not cases.
As you state the facts in the argument, you can go into greater detail (than in the brief's statement of facts) if necessary. Always give the record citations (in parentheses) for each new or more detailed factual statement.
In developing your argument, consider the two approaches entitled rule-oriented advocacy and party-oriented advocacy.38This is a brilliant and highly useful analysis.
Judges know the law, but they do not know your client's business. Tell them about it. Educate them. Help them understand why the policy you want to apply to the facts makes sense.
Be very careful in your discussion of cases. Do not overstate a case's holding. Do not quote from a concurring opinion and act as if it were the holding of the court. Do not use dicta as a statement of the court's holding. Respect the limitations that the opinion sets for its holding.
Use secondary authorities correctly. Do not cite a treatise, no matter how respected, as the first authority for any rule of law. Provide a supporting case citation from this circuit first. Many judges are pleased to be given a link to a law review article that discusses the development of the law on this issue. Cite the article or book after the case law support.
Never use a long chain of cites. They are not impressive.
Read every case you cite. Always presume that the three judges on your panel will read them and the author of the opinion in your case will study them all carefully. Be selective about your cited authorities. Reject cases that are poorly written, have a puzzling reasoning, or are factually odd. One strong precedent is all you need. Others detract. Less is more.
The judges who read your brief will always read any written order or judgment of the trial court. Answer that order. Focus on the crucial point where the district court turned against you.
When drawing conclusions from your cases, do not overstate the holding or the underlying rule.
Be most careful about anticipating an opponent's argument. A party is not required to espouse on appeal any legal argument it used in the district court.
The Federal Rules of Appellate Procedure and the Eighth Circuit Rules do not require that the argument portion of a brief follow the organization of the issues presented. Thus, an advocate could discuss the policy behind cases relevant to several points before the law is applied to the facts in one of its points.
If your appeal turns on a statute, regulation, or jury instruction, set forth the relevant portion of the text in a separate paragraph. When building the argument, quote only the words needed for your thought. Do not merely refer the judges back to the document on another page or in the addendum. Provide those key words in quotation marks.
c. The Tactics of the Argument
Do not criticize the district judge. The circuit judges know who are the erratic or lazy trial judges. They do not need to be told that a judge was careless or heedless, acted in anger, was prejudiced, or acted thoughtlessly. The judgment is what you are appealing, not the judge. Judges are protective of their brethren, even those of the subordinate benches.
Do not mention the existence of opposing counsel. Appellate judges are not helped in their work by criticism of the ethics of the other lawyers in the case. Your criticism diminishes you in the eyes of the judges. When I was law clerk for Chief Justice Robert E. Seiler of the Supreme Court of Missouri, I attended most oral arguments. We would have four or five a morning. One day, the third case was full of venom and flash. The two lawyers, both experienced and sharp, attacked each other for misleading the court, being less than candid, acting intemperately and unprofessionally, and generally being an embarrassment to the bar. After the judges' conference, I was waiting to ask the chief justice, "What did you think?" He knew which case had excited me without asking. He spoke with disgust and real disappointment in his voice. "Dennis, none of that helps us to know what the law is or should be. We don't care what the lawyers think of each other. They wasted our time and only made us not like either one of them."
Consider the use of subheadings in your argument. Use headlines that are sentences, not sentence fragments or mere phrases.
Check every citation. Spell the names correctly. Be correct and be reliable. Mistakes in cites are too common. Mistakes indicate a lack of professionalism and concern. They undermine your reliability and, thus, your power to persuade.
d. Some Thoughts on Writing Style
Sample a few books on good writing. Decide upon a favorite. Read it thoroughly. Re-read it from time to time. Use its ideas in your writing.
Avoid legal jargon. This is not a contract or complaint. Use plain English. Strive for clarity.
When reviewing a draft, be aware of repetition and then delete it.
Do not use the passive voice.
Avoid cliches. Use your imagination. Reach for freshness.
Do not overstress. Attempt to write the entire brief without a single italicized word. Do not underline a word in a sentence. If the idea needs emphasis, use a more vivid word or phrase.
Avoid long quotes from cases. Especially avoid the blocked and indented paragraphs of quotation. If you must quote, explain the meaning of it before you quote it. 39
If you have a viable case on appeal (meaning the facts should prompt the judges to want to rule in your client's favor, the law arguably supports your position, and you have fashioned a logical cogent argument applying that law to the facts), then the summary of the case can be your most powerful tool in persuading the appellate court. The summary of the case is not mentioned in the Federal Rules of Appellate Procedure. It is required by Eighth Circuit Rule 28A (f) (1).
That rule is as follows:
(f) Contents(1) Summary of the Case. Each appellant must file a statement not to exceed one page providing a summary of the case, the reasons why oral argument should or should not be heard, and the amount of time (15, 20, or 30 minutes, or in an extraordinary case, more than 30 minutes) necessary to present the argument. The summary must be placed as the first item in the brief. If appellee deems appellant's statement incorrect or incomplete, appellee may include a responsive statement in appellee's brief.
This is such a useful device, we utilize it in our briefs in every circuit and in every case.
Most appellate judges make use of what is sometimes called a bench memo. These are prepared by law clerks for the purpose of summarizing a case. These are used by judges when they hear oral arguments in as many as six cases in a morning. A bench memo reminds the judge of the nature of the case, the most salient facts, the key issues, some law relevant to those issues, and the relief sought by the appellant. Since these memos are confidential, they do not have to be objective or neutral.
The summary of the case is your bench memo to the judges. Boil your brief down to one page. No need to provide references to the record or to cite cases. Be partisan, but not strident. To cut your memo down to size, you will probably eliminate most adjectives and adverbs. Vivid nouns and strong verbs will serve.
If the summary of the case is done well, it will create the framework of the entire appeal. This is the place for your most powerful writing. You will find that it is also the most enjoyable writing you will do in preparing a brief.
Here is one example:
The plaintiffs own railcars. The Short Line Railroad leased 660 of those cars for 10 years. The railroad had many duties to the plaintiffs during the course of the leases. During the ongoing term of the lease, these plaintiffs and another party sued the railroad and its corporate parent in the state trial court in Kansas City, Kansas, for numerous breaches of the lease and for other claims. At one point, the plaintiff sought an injunctive order for the early return of those cars because the railroad was in default of the lease, but this was denied by the Kansas court. The Kansas state litigation did not involve the condition of the railcars at the end of the lease; indeed, the lease had not yet ended when that suit was filed.
After the lease ended, the railroad returned the cars to the plaintiffs. It took a considerable period of time for the plaintiffs to have all of the cars inspected. Upon the report of their bad condition, the plaintiffs filed this suit on September 29, 1998, in Missouri state court. The defendants removed the case on the grounds of diversity of citizenship jurisdiction to the United States District Court for the Western District of Missouri.
The district court dismissed all of the plaintiffs' tort claims and equity claims. It disallowed their contract claims except one cause of action rooted in one article of the lease, Article 14, which provides for return of the cars at the end of the 10-year term. It dismissed the corporate parent as a defendant. The railroad moved for summary judgment on the theory of claim and issue preclusion. The district court granted summary judgment to the railroad and, later, awarded it substantial costs. The plaintiffs appealed the summary judgment and appealed the award of costs. Those appeals are consolidated here.
This case involves a number of complex and subtle issues. These raise some difficult questions. The interchange of oral argument would be of assistance to the court in dealing with these issues. Given the number of factual and legal issues, the appellants request 30 minutes of argument, with 10 minutes of that reserved for rebuttal.
A. The Table of Authorities
The rule 40 calls for "a table of . . . cases (alphabetically arranged), statutes, and other authorities - with references to the pages of the brief where they care cited."
B. The Certificate of Compliance
The limitations on the length of the brief may, at your option, be stated in terms of pages,41words or lines of text.42If you do not choose the page limitations, you must include a certificate in the brief that it is in compliance with the limitations in terms of words, lines or text.43Eighth Circuit Rule 28A(c) requires that this certificate also recite "the name and version of the word processing software used [in preparing] the brief."
C. The Certificate of Service
Opposing counsel is to receive two copies of your briefs.44You must certify that these copies were served.45
D. The Addendum
The rule46specifies that the brief's addendum contain the order from which you are appealing, "including supporting memoranda or findings." Study this local rule carefully. It states in full:
(b) Addendum(1) Contents. Appellant must prepare an addendum and file it with the opening brief. The addendum must include:
(i) a copy of the district court or administrative agency opinion or order including supporting memoranda or findings;
(ii) any magistrate's report and recommendation that preceded the district court opinion or order;
(iii) short excerpts from the record, other than from the transcript of testimony, that would be helpful in reading the brief without immediate reference to the appendix; and
(iv) other relevant rulings of the district court.
(2) Length. The addendum must not exceed 15 pages excluding the district court or agency opinion and the magistrate's report and recommendation. The addendum will normally be incorporated into the back of the brief, but may be bound separately if it includes a long district court opinion or report and recommendation. If bound separately, the appellant must file the same number of addenda as briefs.
(3) Appellee's Addendum. The appellee's brief may include an addendum not to exceed 15 pages.
E. The Table of Contents
Number the pages of the brief. Number the pages of the addendum separately, if you choose. Finally, prepare the table of contents. Consider listing each argument in this index.
F. Computer Diskette
Note Eighth Circuit Rule 28A(d):
(d) Computer Diskettes. For all briefs prepared on a computer, the filing party must also provide the clerk with a 3½ inch computer diskette containing the full text of the brief. The label on the diskette must include the case name and the docket number. One copy of the diskette must be served on each party separately represented by counsel. The filing party must certify that the diskette has been scanned for viruses and that it is virus-free.
A. Using Time Wisely
Writing a brief is a time-consuming task. Most advocates allow for an insufficient amount of time for writing and rewriting. Avoid the term paper syndrome: rushing to get the assignment done the night before it is due. Allow at least three weeks of work for writing a first class brief, unless you can be confident that other matters will not be distracting you.
Allow some time for putting the draft aside at some stage so you have time to think about it. You can then look at the brief with fresh eyes. Allow time for the reviewing process.
B. Using Reviewers
Have someone who is not familiar with the case read a draft of the brief. Ask them to take notes while reading it. Confer with them. Insist that they be candid. Do they understand what the case is about? Did they understand the issues? Did they follow the arguments?
This process may leave you with bruised feelings. Get over it. It is better to see the deficiencies now than to lose the case because you failed to see one of the problems with your brief before you filed it.
Endnotes
1 Dennis Owens of Kansas City, a Fellow of the American Academy of Appellate Lawyers, has been editor-in-chief of the American Bar Association's Appellate Practice Journal since 1988. He graduated from Rockhurst College (1967) and the University of Notre Dame Law School (1975), was a law clerk for Chief Justice Robert E. Seiler of the Supreme Court of Missouri (1975-76) and edited The Missouri Bar's CLE deskbook, Missouri Appellate Practice & Extraordinary Remedies, Fourth Edition.
2 The requirements for briefs can be ascertained from these authorities: Rules 3, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34(f), 39(c), and 46(c), Federal Rules of Appellate Procedure; Rules 26A, 26.1A, 28A, and 29A, Eighth Circuit Rules of Appellate Procedure; Title 28 U.S.C. § 2071, and 28 U.S.C. §1915(a); and the Eighth Circuit Internal Operating Procedures.
3 Fed. R. App. P. 31(a).
4 Fed. R. App. P. 3(a) and 3(c).
5 Fed. R. App. P. 46(c) and 3(a).
6 Mo. Sup. Ct. R. 4-1.1, 4-1.3 and 4-3.2.
7 Fed. R. App. P. 28(c) and 31(a).
8 Fed. R. App. P. 28(c).
9Fed. R. App. P. 28(i).
10Fed. R. App. P. 28(i)
11Mo. Sup. Ct. R. 4-1.7.
12Fed. R. App. P. 28(c).
13Fed. R. App. P. 31(a)(1).
14Fed. R. App. P 31(a)(1).
15Fed. R. App. P. 31(a)(1).
16Fed. R. App. P. 31.
17 8th Cir. R. 28A(a).
18 Fed. R. App. P. 32(a)(4) and 32(a)(5).
19Fed. R. App. P. 32(a)(7).
20Fed. R. App. P. 32(a)(5)(B).
21Fed. R. App. P. 32(a)(7)(B)(iii).
22Fed. R. App. P. 32(a)(7)(c).
23 8th Cir. R. 28A(e)(2).
248th Cir. R. 28A(d).
25See Fed. R. App. P. 32(a).
26See Fed. R. App. P. 28(a); 8th Cir. R. 28A(f).
27See Alex Kozinski, "The Wrong Stuff," BYU L. Rev. 325 (1992).
28Jack W. Cooley, Appellate Advocacy Manual, Lawyer's Edition, Clark Boardman Callaghan, 1990, supp. 1994.
29United States v. Alvarez-Sanchez, 511 U.S. 350, 360 n. 5 (1994).
30Alex Kozinski & Stephen Reinhardt, "Please Don't Cite This!", Appellate Practice Journal, 20 Cal. Law. 43 (2000).
31Fed. R. App. P. 32(a)(2).
32Fed. R. App. P. 28(a) and 26.1.
33Fed. R. App. P. 28(a)(4).
34United States v. Bledsoe, 674 F.2d 647 (8th Cir. 1982), cert. denied, Phillips v. United States, 459 U.S. 1040 (1982).
35Winning on Appeal: Better Brief and Oral Argument §10.1, p. 75 (revised first edition, 1996).
36Fed. R. App. P. 28(a).
37 Fed. R. App. P. 28(a).
38Michael E. Tigar, Federal Appeals: Jurisdiction and Practice §9.66, pp. 325-332 (2d ed., 1993).
39See Bryan A. Garner, The Winning Brief, Tips 75 & 76.
40Fed. R. App. P. 28(a)(3).
41Fed. R. App. P. 32(a)(7)(A).
42Fed. R. App. P. 32(a)(7)(B).
43Fed. R. App. P. 28(a)(11).
44Fed. R. App. P. 31(b).
45Fed. R. App. P. 25(d).
46 8th Cir. R. 28A(b)(1)(i).