- Long boring briefs
- Incoherent, unfocused, disorganized briefs
- String cites and other poor use of authority
- Briefs with abusive language
- Briefs that ignore the standard of review or attempt to relitigate the facts
- Briefs that ignore jurisdiction
- The last minute emergency motion—usually filed at 4:00 p.m. on a Friday before a holiday
Even a glance at the list reveals that it is as relevant today as it was in 1986. Preventing these sins requires time and honesty.
Time is needed to read and revise the brief, to shorten it and give it some punch. Briefs do not offer the opportunity to pull out the joke book and tell a few thigh slappers, but they can be lively and engaging documents. Briefs can also be organized in a clear, logical manner so that each section builds the argument systematically and flows into the next section. A writer who cannot achieve these goals really should not be writing briefs in any court.
Abusive language cannot advance the brief or benefit the client. Those who use abusive language diminish themselves and offend the court. If anger and bitterness are too powerful to ignore, write the brief that pours them onto the page and then close that file. Start anew having purged those emotions sufficiently to write the real brief you will file. Attorneys are human. Even the best among us have a hidden folder of letters not sent and briefs not filed.
Relitigating the facts or ignoring jurisdiction and the standard of review waste the opportunity to salvage a victory on appeal out of a disaster in the trial court. Appellate judges follow and apply jurisdictional rules and the standard of review multiple times every day. Don’t assume these rules will not apply to you or that your facts are so compelling on a cold record that the court will forget the rules it looks to every day to govern other cases.
Finally, plan ahead. Avoid the emergency motion if possible, especially on Friday. If an emergency motion must be filed, include an explanation why there had to be an emergency. Give your opponent as much advance notice as possible—no amount of notice will help your opponent if your motion is well taken. Minimum notice makes the court even more suspicious of you and your motion. Take care not to ask for more than you should fairly receive if the judge hears your motion favorably.