Appellate brief writing is an art. "Appellate work is most assuredly not the recycling of trial level points and authorities." In re Marriage of Shaban, 88 Cal.App.4th 398 (2001). "[A]ppellate briefs receive greater judicial scrutiny than trial level points and authorities, because three judges (or maybe seven) will read them." Unlike trial judges, appellate judges "work under comparatively less time pressure, and will therefore be able to study the attorney’s ‘work product’ more closely." Given that level of scrutiny, the potential impact of a well-written brief is substantial. And no matter how many briefs one has written, the next one can probably be improved because the craft of brief writing is a search for perfection. But unlike perfection, if a few basic strategies are followed, more effective briefs are easily within reach.
Before Writing: Chase All the Rabbits
Effective appellate work requires precision. Even the most elegant, persuasive brief will likely be of little utility to the client if the decisive issue is missed or the wrong arguments made. Trial lawyers just emerging from battle sometimes see the decisive issue too narrowly or not at all. "The upshot of these considerations is that appellate practice entails rigorous original work in its own right." In re Marriage of Shaban. So before even thinking about brief writing, become intimately familiar with case. Even for those who have worked on the matter at an earlier stage, always review the record as thoroughly and carefully as if the matter is entirely new. While reviewing the record, create a working list of possible legal errors as they appear. Be sure to jot down the implicit issues that arise the other side of the coin such as burden shifting and waiver. Annotate the list as the record is reviewed. Tables can be helpful to plot all the moving parts.
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