Upon Further Review

Howard Bashman.

Today's column is the second of a three-part series intended to help readers understand and hopefully avoid some of the most troublesome pitfalls lurking in appellate practice. This column focuses on what appellate judges agree is ordinarily the most important part of the appellate process—the parties' briefs on appeals. Part one of this series, which appeared in December 2018, focused on the notice of appeal that begins the appellate process. And next month's column will focus on orally arguing an appeal.

What makes the parties' briefs on appeal the most important part of the appellate process? The briefs present the only opportunity a party will have to tell the appellate judges in writing what the case is about, what issues are before the appellate court for resolution, and why the decision under review should be upheld or overturned. In certain appellate courts, such as the U.S. Court of Appeals for the Third Circuit, which hold oral argument in only a small fraction of all appeals, an appeal is frequently won or lost on the briefs alone.

Even in the Superior Court of Pennsylvania, which will allow oral argument of an appeal so long as it is requested on a timely basis, your case may be one of more than 40 appeals being argued to the same three-judge panel over a two-day period. No transcript or audio recording of the oral argument will exist after the oral argument concludes. Thus, when the judges want to be reminded of what the appeal involves or exactly what the parties are arguing, the judges will have only the written briefs to guide them once the oral argument begins to fade from memory.

To be sure, it is impossible for me to share in one short column all that I know and have learned about effective appellate brief-writing during the past 28 years in which appellate brief-writing has been the central focus of my legal practice. Indeed, many of the individual points that I am about to list could be the subjects of their own in-depth analysis. In a nutshell, if your case deserves or would benefit from the strongest possible appellate brief, have someone who is experienced and good at it in charge of writing that brief. And, if you don't already have that person on your team, outside help is available.

Creating the strongest possible appellate brief involves the culmination of numerous skills being brought to bear simultaneously. You need to know the rules of the appellate court in which your appeal is pending. In a federal appeal, that means you need to know not only the applicable Federal Rules of Appellate Procedure, but also the individual court's local rules and practices. For example, different federal appellate courts have different maximum permissible word limits for appellate briefs, and the only way to know for sure what word limit applies to your brief is to consult both sets of rules.

If you are lucky, your court may offer a checklist of what your appellate brief must contain, which is something the Third Circuit offers on its web site. If no checklist is available, you should make your own to ensure that the brief you submit is not defective. Of course, even if a checklist is available, it remains your responsibility to make sure that the checklist is correct and that your brief complies with it.

In addition to knowing what the rules require, there is no substitute for knowing what the case you are going to brief is about. Learning this requires not only mastering the details of the trial court's ruling(s) to be challenged on appeal, but also learning what the parties argued to the trial court and when they argued it. In addition to learning about the legal issues, the appellate briefs must also inform the judges about the relevant factual and procedural history of the case. The word “relevant” in the preceding sentence is especially important, because nothing is more likely to cause appellate judges to lose interest in a brief than extensive recitations of factual and procedural history that are irrelevant to the appeal.

One of the most important aspects of appellate brief-writing is also one of the most important aspects of appellate strategy in general: namely, deciding which issues should be raised on appeal. Many cases, especially those in which a trial has occurred, present numerous issues that could be raised on appeal. Yet an appeal that raises six to ten or even more issues is unlikely to obtain any relief. A brief that raises so many issues is unlikely to argue any of them effectively, and the appellate judges will receive loud and clear the signal that none of these issues is likely to be very strong because why else are so many being raised simultaneously. A brief that raises two to four issues is far preferable to a brief that raises many more in a scattershot approach.

Experienced appellate advocates will know to keep numerous other things in mind when approaching the briefing of an appeal. For example, does the appellate court have jurisdiction over this appeal? Have the issues presented for review been properly preserved in the trial court, and where were they preserved? If you are the party taking the appeal, have you challenged all of the grounds on which the trial court relied in ruling against you? When a trial court rules against a party on two independent grounds, if that party's appeal challenges only one of those two grounds, the appeal is doomed to fail even if the challenged ground is proved incorrect because the other ground remains unchallenged. And, if you are the party that won in the trial court, should your brief raise alternate grounds for upholding the trial court's result that you argued in the trial court but the trial court viewed as unnecessary to reach?

Have someone who is a clear thinker and good writer be the author of your appellate brief. The strongest appellate briefs lead the appellate judges to recognize that a ruling in your client's favor is self-evident. Avoid personal attacks on the trial judge and opposing counsel. Remember that exaggeration is the enemy of persuasion. Before you characterize the result in your case as presenting “the worst miscarriage of justice this court has ever seen,” keep in mind that appellate judges may have seen many cases even worse than yours. Try your best to keep your appellate brief as short as possible.

Last but not least, save time toward the end of the process, before the brief is due, for proofreading and revisiting your work with fresh eyes and an open mind. Too many careless errors in your final product may begin to undermine the court's confidence in your work. Also, remember at the outset that the judges reading your briefs may know next to nothing about your case or the area of law involved.

In sum, for your client to have the greatest chance of winning an appeal, you need to make sure that your appellate briefs are as strong and persuasive as possible.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove and can be reached at 215-830-1458 and via email at [email protected]. You can access his appellate web log at http://howappealing.abovethelaw.com/ and via Twitter @howappealing.