One of the questions most often asked at seminars on appellate advocacy is what should be the tone of a brief. The answer—that most former judges and experienced appellate advocates give—is that your effort should be to persuade the judges that you are correct. Hyperbole, personal jabs at your opposing lawyers, and overconfidence are counterproductive. Judges do not like it, and it becomes a distraction for them.

The appellate panel wants to do the right thing—come to the correct and just conclusion. I recently read a brief in preparation for a mock argument session that had all of these flaws, and it struck me that the reason most of the appellate lawyers who take this combative approach is to convince their clients that they are correct and that they are tough-minded lawyers. Do not write your brief with your client as the audience; write it for your real audience—the judges. We all understand that litigation is intense and that you need to be a zealous advocate. But, when you cross that line with the tone of your brief, your chances of succeeding lessen. If your clients want a more aggressive tone, your job is to convince them of the correct approach; your goal is to win the case, not to antagonize the judges.