A view from the inside: Tips for appellate briefs

ROANOKE – When it comes to writing an appellate brief, knowing your audience may be just as important as knowing the facts and the law.

A career law clerk with the Supreme Court of Virginia recently offered that and other tips for lawyers who hope to persuade an appellate court to rule their way. John S. Koehler has read briefs and penned legal documents for the Supreme Court and the Court of Appeals for more than 27 years, and he had some pointed advice for other legal writers at an Oct. 4 gathering of the Salem/Roanoke County Bar Association.

A key admonition: Don’t lose sight of who you are writing for. Your words will be read by a law clerk or staff attorney who will brief the appellate judges in your case. In a criminal appeal, the documents are reviewed by staff attorneys who specialize in that area. Clever wordplay and dramatic flourishes will go unseen by the jurists who ultimately will decide the case.

“The judge will never read your brief. You’re writing for the judicial staff,” Koehler said.

Perhaps of more importance is to keep in mind why you write the brief, he continued.

“You’re not writing to impress the client. You’re not writing to bamboozle the opposing counsel. You’re not writing to win a Pulitzer Prize. You’re talking directly to the court,” Koehler said.

“Your client can’t give you what you want. Only the court can do that,” he added.

A lawyer who has lived with a case long enough to see it go up on appeal may assume everyone in the legal world knows the facts, especially the judicial staff that will consider the appeal. Not so, Koehler said. Avoid the “omniscient audience fallacy,” he said. “Don’t assume the court knows what you know.”

“We see this all the time in briefs. They start in the middle of the story and we don’t know what they’re talking about,” Koehler said.

If the other side has already filed a brief, you may want to think about how much space to use responding to the adversary’s arguments. Many opposition briefs are point-for-point answers to the arguments of opposing counsel, Koehler said. The writer loses a chance to frame the case in his or her own terms. Brief writers should consider the case as a whole and explain why their clients should prevail, rather than why the other side is wrong, he continued.

“Do not let your opponent drive your content,” he said. “Approach it fresh and see what’s there.”

A common misstep is to try to be too inclusive, perhaps in an effort to show familiarity with all the facts. No need to mention the facts that help the other side.

“I read briefs and sometimes wonder which side this attorney is representing,” Koehler said.

His advice is to “marshal your facts – those helpful to you.” Let the other side educate the court about the facts that help them.

Getting the proper tone is important. Writing an appellate brief requires walking a fine line between the soft sell and the bombastic.

“Don’t undersell your case, but don’t oversell it, either,” Koehler said.

“Try to avoid ‘weasel words.’ Be very positive, very strong,” Koehler said. But “hyperbole is never a winning strategy,” he added.

More advice: Make sure to ask for what you want. A number of petitions for appeal never conclude with a request for the court to grant the petition.

“Technically, if you don’t ask for it, we can’t do it. Fortunately, we’re not that technical,” Koehler said.

A recurring theme of Koehler’s lesson was the importance of brevity.

“Brevity is enjoined as the outstanding characteristic of good pleading,” reads Rule 1:4(j), under the heading of “General Provisions as to Pleadings.”

“First drafts are almost always too long,” Koehler said. “Never do just one draft.”

But he cautioned, “Brevity should never be achieved at the expense of clarity or completeness.”

An absolute rule should be that the lawyer gets someone else to review the brief before it is filed. Koehler described his surprise at reading an overheated motion for reconsideration suggesting dark forces at work at the court.

“I thought someone was playing an April Fool’s joke on me,” he said.

The author of that pleading was sanctioned “quite severely,” Koehler noted. He said he later learned the lawyer had failed to observe a firm policy calling for another set of eyes on any appellate brief.

“I’m sure if he had, that brief never would have left the office,” Koehler said.