All posts by Ann Schwing

Old….But Good: Citing Older Decisions

Don’t assume that an argument should be discarded because it is supported only an old case.  For example, plaintiffs relied on Stevens v. Los Angeles Dock & Terminal Co., 20 Cal.App.743 (2d Dist. 1912), and defendant  More-Gas first noted that Stevens is “’a 100 year old case that has never been cited by another California case.’” The court in McGuire v. More-Gas Investments, LLC, 220 Cal.App.4th 512, 526 (3d Dist. 2013), responded:

That fact is of no significance. While it is true Stevens has never been cited by any published appellate decision in California, that does not undercut the validity of the reasoning in the case. Indeed, the principle applied in Stevens is well known in the common law, including here in California. An appellate court in New York that cited Stevens over 70 years ago succinctly articulated that principle as follows:

As McGuire illustrates, age of a compelling case is not necessarily a matter of consequence.  What are some ways to show why the case is compelling when it has never been cited by another California court? Continue reading


Stipulations of law: Wouldn’t it be nice if we could all agree?

Occasionally an attorney will propose that the parties stipulate to the meaning of a relevant statute.  Such stipulations have no legal force and will be disregarded by the court.  Numerous cases so hold across the United States:


  • Parties to a dispute cannot stipulate to the law and assume that the court will follow blindly an incorrect interpretation of the law, especially in an unsettled and everchanging area.” Carlile v. South Routt School Dist. RE-3J, 739 F.2d 1496, 1500 (10th Cir. 1984)


  • “Parties may stipulate to facts but they may not stipulate to the law. Such stipulations as to the law will be disregarded.”  Ahlswede v. Schoneveld, 488 P.2d 908, 910  (Nev. 1971), followed in Southern Pacific Transp. Co. v. United States, 462 F. Supp. 1227, 1239 (E.D. Cal. 1978)


  • “As for the proper measure of damages and the parties’ stipulation thereto, we note the circuit court’s accurate statement from the bench that parties cannot stipulate to the law or to legal conclusions.”  Henry v. Mitchell, 428 S.W.3d 454 (Ark. 2013)


There is an important distinction between stipulations as to the interpretation of the law and agreements as to the choice of law.  Contracting parties can agree to the choice of law, especially before any dispute has arisen, absent the presence of facts that justify breaking the agreement such as duress, undue influence, illegality, or the like.

Don’t assume that the court has these rules memorized and instantly accessible.  On the other hand, don’t take advantage of the ignorance of your opponent and the workload of the trial court.  It often happens that the trial court accepts a stipulation as to interpretation of the law only to be reversed on appeal.  At that point, the party harmed by the stipulation may have new counsel or time to research the issue.  The appellate court is much more likely to have a law clerk to research such issues.  Attempts to argue that the stipulation should stand are likely to produce a loss of respect.  As a result, any benefit of the stipulation is typically more than negated by the cost of a reversal and retrial.


Make It Easy

An appellant has the opportunity to make it easy for the appellate panel to locate the relevant documents in the record.  GavelIf you have the responsibility to create part of the record, select a page numbering system that makes sense so no pages have the same number.  Create a meaningful index to the record.  For example, if a document has an odd or misleading title, provide that title and, in brackets] a few accurate, neutral, descriptive words.  Identify the declarant or witness if that information is not in the title.  Provide copies of the index in the brief and in each volume of the record, marking which documents are in which volume.

Cite to the record for every point.  Dominguez v. Financial Indemnity Co., 183 Cal.App.4th 388, 392 n.2 (2010) (“because FIC’s brief fails to provide a citation to the appellate record for these facts, we do not consider them”); AdvanceMe, Inc. v. Finley, 275 Ga. App. 415, 620 S.E.2d 655, 657 (2005) (“It is not the function of this court to cull the record on behalf of a party”).  It almost goes without saying that you should cite accurately to the page with the relevant material.  Scott v. Bank of America, 292 Ga. App. 34 , 663 SE 2d 386, 387 (2008) (“while the parties cite to the appellate record, many of the page numbers cited are incorrect”).  Cite to the record by page and line, if the lines are numbered, even if that specificity is not required.  Skinner v. State, 83 Nev. 380, 432 P.2d 675, 384 & n.4 (1967); Anderson v. Meyer Broadcasting Co., 630 N.W.2d 46, 50 (N.D. 2001).  Cite by page and paragraph or use terms like “start,” “middle,” and “end” if there are no line numbers. Continue reading


Use Block Quotes Carefully and Sparingly

Format selected block quotes for easy reading. Many readers find the dense text of standard block quotes tiresome enough to read that they may skip over the blocks entirely. Istvan & Ricks, Top 10 Ways to Write a Bad Brief, N.J. Law. (2006).  Add extra leading between the lines to reduce that tendency. If there are paragraphs in the block quote, retain that formatting fountain peninstead of substituting a paragraph mark.

Choose block quotes carefully and sparingly.  Judge Alex Kozinski remarked: “Whenever I see a block quote I figure the lawyer had to go to the bathroom and forgot to turn off the merge/store function on his computer.” Kozinski, The Wrong Stuff, B.Y.U.L. Rev. 325, 329 (1992). Given the danger that long block quotes may not be read, paraphrase the less critical material to shorten the block.  Write the lead in to the block to reveal its importance.  If the block is important because it states the three elements of this or the five tests for that—then add letters or numerals in brackets or otherwise format to assist the reader.  Although a textual repetition of the content immediately following the block is likely to offend the reader, the points can be worked into the text at a later opportunity. Continue reading


Baby Steps

One successful approach to the preparation of opening briefs is to assume the court knows nothing of the subject and is uncomfortable making a decision that no judge has made before.  Each step in the argument must then be accompanied by citation to relevant precedent reflecting the wisdom of the that step and, overall, of the decision you seek.  The key is to 8122523_ab151ea98b_zidentify the right starting place and the steps required to travel from the starting point to the desired end, avoiding the tendency to slide over or combine them.

Briefs using this model should provide all forms of authority needed to convince the judge to take the next step.  Possible evidentiary issues need to be resolved; substantive questions need to be answered or shown to be inapplicable.  As each step is explained and answered, the next step can be introduced and its issues and questions answered.  At the end, the table of contents alone can walk the reader through the points to the desired ruling.

Once the steps are identified, the writer may elect to address evidentiary issues as a group, at the beginning or end of the brief.  Alternatively, a writer may prefer to brief all issues presented by one step before turning to the next step.  No matter which technique is adopted, work on later steps will often turn up cases and points that can strengthen the earlier steps.  As work progresses, a single step may be perceived as comprising several steps, requiring additional reworking. Continue reading


Legal Ethics Resources

Substantial information on legal ethics is available on the Internet, including:

  •, a broad-based Legal Ethics Research Guide offered by Georgetown Law Library with links to substantial material. Many of the links are to Lexis and Westlaw, but there is an extensive list of available resources, and some Internet ethics
  •, which focuses on a variety of specific topics, including ethical walls, blogs, ethical issues associated with use of technology by legal professionals, use of the cloud, and a state by state directory.
  •, described as “A Guide to Conflicts of Interest for Lawyers,” which gathers material into multiple topics such as Co-Counsel/Common Interest, Corporate Families, Enjoining Conflicts, Investing in Clients/Stock for Fees, Lawyers Representing Lawyers.

Continue reading


Not Represented by the Same Counsel in This Court

Trial and appellate counsel may differ for a variety of reasons, not all of which reflect poorly on one or the other.Gavel  On occasion, however, trial counsel may have acted so unprofessionally or ignorantly as to be the target of strong remarks by the appellate court.  In this case, the appellate court should and often does inform readers of its decision that the same attorney did not appear in both courts. Continue reading


Take the High Road

Litigation offers attorneys many opportunities to choose how they will behave and what they will say. youre it The best course is to take the high road at every opportunity.  Rudeness, profanity, throwing things, hitting people, we all know how the ugliness starts and how far it can progress.  A small meanness may be reciprocated, then followed by an escalation and tit for tat.  Once it starts, unprofessional behavior may be very difficult to stop or to confine to one specific case.

All attorneys are held to a high standard by the law and the rules of professionalism and civility. Continue reading



Judicial opinions enjoy no copyright, so some may contend that copying from judicial opinions without attribution may not be plagiarism. paperThey would be wrong. Copying another’s writing is plagiarism even if there is no copyright and even if some sentences are added or deleted. Moreover, even copying multiple citations from another’s work is plagiarism.  In re Burghoff, 374 B.R. 681, 685 (Bankr. N.D. Iowa 2007), following Frith v. State, 263 Ind. 100, 325 N.E.2d 186, 188 (1975).

Plagiarism in brief writing is disfavored at best, and there are multiple examples of judicial displeasure. Continue reading


Mandatory Notice to Attorney General on Appeal

A variety of federal and state laws require that notice of an appeal be given or that a copy of the appellate brief be served on the U.S. Attorney General or the applicable state attorney general.OAG  Failure to comply may delay the appeal or result in other sanctions.  For example, California provisions declare: “No judgment or relief, temporary or permanent, shall be granted or opinion issued until proof of service of the brief or petition on the Attorney General and district attorney is filed with the court.”  Cal. Bus. and Prof. Code §§17209, 17536.5; accord, id. §16750.2.

Federal law also requires notice and grants a right of intervention to the United States Attorney General or the California Attorney General, respectively, when the constitutionality of federal or state statutes affecting the public interest is challenged in federal litigation to which the federal or state government or their agencies or employees are not already parties. Continue reading


Read the Rules

Judges are substantially governed by rules—local rules, rules of evidence, state or federal rules for trial courts or appellate courts.FedPrac  Rules do not normally determine the merits, although rules provide the structure or framework within which the merits can be considered fairly to both sides.  Not surprisingly, judges typically know the applicable rules quite well.  The judge may have drafted the local rule specifically to address an issue arising with some frequency in that judge’s courtroom.  Or the judge may have been reversed for failure to enforce the rule.

Judges expect attorneys to know the rules.  Attorneys who practice in multiple courts may need to learn and use many sets of rules.  Just do it.  The alternative is to be sorry.  Courts are not gentle with attorneys who fail to read and follow the rules, as reflected in the following, drawn from a wide variety of available examples.  In some instances, the court decision effectively sets up a malpractice action against the careless attorney. Continue reading


Adopt a Consistent Cite-Checking Approach

A primary brief author may work over a number of days on the brief, followed by review and alteration by other attorneys and the client.fountain pen  Sections of the brief may be emailed to others for comment.  It can be hard to remember which case and statutory cites have been checked thoroughly. Even aside from cites that may be added by others, an attorney may run across a case supporting point X while focused on point Y. If the attorney adds the case to the draft brief in progress and returns to point Y, there may be nothing to distinguish that citation from the cites that have been checked.

Those who use Google Scholar and other imperfect sources of law need to track the cases located through that research to check them on Westlaw or Lexis because reconsideration may have caused alteration of the relevant paragraph.  Subsequent history may turn a good cite into a bad one. Annotations may reveal a good or bad construction of a statute not shown by Internet sources for the statutes.  Although the issue is especially acute with Google Scholar, the problem exists with every cite.

One solution to this recurring problem is Continue reading


Seven Deadly Sins

In Seven Sins of Appellate Brief Writing and Other Transgressions, 34 U.C.L.A.L. Rev. 431 (1986), fountain penNinth Circuit Judge Harry Pregerson identified seven deadly sins of appellate briefing:

  • 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

Continue reading


String Citations

String cites are almost universally condemned.  paperJudges at all levels criticize string cites.  Minority and dissenting judges criticize majorities that use string cites, and vice versa but to a lesser extent.  Attorneys criticize the string cites in their opponents’ briefs.  Law reviews insult string cites routinely.

What distinguishes a string cite from a list of cases that support the stated proposition? Continue reading


Address Cases That Hurt

Almost all legal positions that matter to one side in a dispute have contrary law supporting a different legal position.8122523_ab151ea98b_z  I’ve got some cases on my side and you’ve got some cases on your side.  One of the serious mistakes I can make is to focus so greatly on the good cases that I fail to distinguish and destroy your cases that hurt my position.  In Coghlan v. Starkey, 852 F.2d 806 (5th Cir. 1988), the court awarded sanctions for frivolous appeal for that mistake.  “Here, the appellate brief indicts counsel as having recognized that no authority supports the claim. Not only was there scant discussion of adverse decisions cited by the magistrate, but only two cases were even named in the brief. This is poor appellate practice and an abuse of the appellate process.” Id. at 816 (footnote omitted).

What are some ways to address the cases that hurt?  Continue reading


Appellate Advice from an Appellate Court

The Bankruptcy Appellate Panel of the Ninth Circuit has adopted some materials designed to assist attorneys and litigants involved in a bankruptcy appeal before the books Although many of the excellent materials address the peculiarities of bankruptcy appeals, Appendix I has advice for all attorneys in any court.

Do’s and Don’ts for an Effective Appeal


1. Know what relief you want (and why).

2. Know your audience. BAP judges generally possess a level of expertise in bankruptcy matters superior to that of most district court judges and their law clerks.

3. Understand the role of the appellate court. While its dominant role is to assess whether the trial court reached the correct result, Continue reading


Reply to a Terrible Brief

After filing an opening brief,edits you have a month or more to see what your opponent has to say.  The day finally arrives, and you snatch up your opponent’s brief and read it only to discover that your opponent has filed a truly bad brief, an extraordinarily poor piece of work that makes you laugh and cringe at the same time.  How do you respond in your reply brief? Continue reading


Res Judicata and Full Faith and Credit Across State Lines and in Federal Court

When is a judgment a judgment for purposes of res judicata or the doctrine of full faith and credit when the judgment is obtained in one court and sought to be enforced in a different court?  Dictionary

Many possible answers come to mind: when the judgment is entered, when the time for appeal has elapsed, during the pendency of an appeal for which no supersedeas bond was provided, when any appeal of the judgment is finished, when the judgment is final in the court that entered it, when the judgment is final in the court in which enforcement is sought.

There may be a State and a circumstance in which every one of these possible answers is the right answer. Continue reading


Errors on Appeal — Too Many Issues

Decisions across the U.S. identify, as one example of “bad appellate advocacy,” presenting too many issues on appeal.judicial bench The Seventh Circuit applied those words to a brief that presented “12 issues for review—many with sub-parts, for a total of 21 principal contentions. Posing so many issues ensures that each is superficially argued.” Reed-Union Corp. v. Turtle Wax, Inc., 77 F.3d 909, 911 (7th Cir. 1996). The court in Carpinet v. Mitchell, 853 A.2d 366, 371 n.2 (Pa. Super. 2004), found much to criticize, finding itself “compelled to comment on the state of this appeal.” The court found itself Continue reading


Kinds of Authority

Think of legal research as a way to get from here to there and to convince others to go with you.  Even judges, perhaps especially judges, are uncomfortable going, in the words of Star Trek “where no man has gone before.”  fountain penLegal research provides the stepping stones of authority showing that others have gone from here to there before and that “there” is the right place to go.

Here are some of the stepping stones:

  • Direct authority—a clear and definitive statement in the applicable constitution or statute or by a controlling court or other body (use may require briefing to establish the body’s status as controlling when preemption, choice of law, and similar issues are presented; if there is no statute, then a regulation; if the highest court has not spoken, then an intermediate court).

Continue reading


How To Shorten Your Documents

At least in the initial drafts, efforts to keep a document concise may stifle the flow of written words.  paperIf this is true, then let the words come freely and deal with wordiness later.  Once the desired content is captured, a writer can turn to making the document shorter and otherwise more pleasing.

There are a variety of ways to shorten the draft to meet page limits:

  • Check the margins to be sure the lines extend to the full permitted width and length.  Extend the block quote margins.
  • Create Continue reading

Mootness on Appeal

Substantially the same principles apply to actions that become moot on appeal as apply before judgment.5554035521_f6b59ccafa_n E.g., Annot., What Circumstances Render Civil Case, or Issue Arising Therein, Moot So as to Preclude Supreme Court’s Consideration of Their Merits, 44 L.Ed.2d 745 (1975); Note, Mootness on Appeal in the Supreme Court, 83 Harv. L. Rev. 1672 (1970).

When an event occurs during an appeal, without the fault of the defendant, that renders it impossible for the court to grant effective relief to the plaintiff if the court should rule in favor of the plaintiff, the issue is moot and the appeal should normally be dismissed. Alvarez v. Smith, 558 U.S. 87, 89, 130 S.Ct. 576, 578, 175 L.Ed.2d 447, 451 (2009); United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 106, 95 L.Ed. 36, 41 (1950). Depending on circumstances, the trial court’s decree may be vacated before the dismissal.   On vacatur or dismissal of the appeal, see U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 26, 115 S.Ct. 386, 392, 130 L.Ed.2d 233, 242 (1994); NASD Dispute Resolution, Inc. v. Judicial Council of State of California, 488 F.3d 1065, 1068-69 (9th Cir.2007).  An appellate court is less likely Continue reading


Using Short Names

Legal documents routinely identify the parties and others by full name in the early passages and then create a short name for use in the rest of the document.Typewriter Make the most of this practice by thinking things through at the beginning of a case.  Whatever short name is selected should be one that works for the entire case and any appeal. Changing the name even once adds an opportunity for confusion that cannot benefit the client.

Some factors in selecting the short name:

  • The name needs to be short, the shorter the better if other requirements are met.  If there are word limits for briefing in the trial court or, more likely, on appeal, use Continue reading

Use Spellcheckers and “Replace All” With Care

Don’t ever trust a spellchecker despite how valuable it can be.

  • Many correctly spelled words are not the ones you intended.  If possible, delete common words from the dictionary that are unlikely to be correct in context, such as pubic (public), untied (United).
  • Some spellcheckers will automatically “fix” words the spellchecker identifies as wrong.  One example is tortious (correctly spelled but not in the dictionary) which is automatically changed to “tortuous” by some versions of the Word spellchecker.  Another example is “sua sponte” which has been autocorrected to “sea sponge” in some cases.  Unless your eyes are directly focused on the word at the moment it changes, you may never know that auto-correct has fixed it (and you).

Here is “A Little Poem Regarding Computer Spell Checkers…” for those who would be amused and a film clip of a comic’s routine on proofreading.

Never use the “Replace All” tool without at least replacing a number of the items one at a time.  One publisher that can be nameless wanted to fix all citations to Cal without a period (as in Cal App) and replaced all throughout the manuscript without limiting the replacement to capital Cal space.  As a result, the entire manuscript was sprinkled with “Cal.ifornia,” “practical.” “cal.culated,” and so on.  Problems created with Replace All may be virtually impossible to locate.


Use Space in Documents

Legal documents contain many words, often too many, but that’s not all.  Legal documents contain open space or white space between the captions and the text, as well as above, below and on the sides of block quotes, lists and bullets.Gavel  Attorneys focus on the words and sometimes pay no attention to the white space even though it can make significant difference in the readability of the document.

Unless you are working under a page limit and the burden of too much to say in too few pages, don’t feel obligated to cram your words into the smallest space possible.


Using Online Legal Dictionaries

Many legal dictionaries are available on the Internet:Dictionary


How To Best Use Bullets in Briefs

BulletsOften a listing of specific items need not or should not be numbered.  Numbers may incorrectly indicate a hierarchy or ordering of the items.  In these cases, bullets work well.

The material presented in bullets needs to be parallel in form and format.  If one is a sentence, then all should be sentences; if one is a phrase, the rest should be similar phrases.  The bullet items should normally all be in the same tense if verbs are used.  Opening capitalization and ending punctuation (if any) should be the same.  There is no absolute right and wrong in the style. Shorter phrases lend themselves to lower case.  If any bullet will have more than a single sentence, then an initial capital and a period will be needed.

When appropriate, a short caption can introduce each bullet. Continue reading


Why You Should Vary Sentence Length

Attorneys often write exhaustive and exhausting sentences.  Attorneys may not be the worst offenders, as Wikipedia cites Jonathan Coe’s 2001 novel The Rotters’ Club as containing a 13,955-word sentence. Typewriter In Stanard v. Nygren, 658 F.3d 792 (7th Cir. 2011), the court criticized a complaint with at least 23 sentences with 100 or more words, including sentences of 385, 345, and 291 words.  Average sentence length should be 18 to 20 words, and Word will tell you that, along with other readability indicators.

Some sentences have to be relatively long, but long sentences should be interspersed with short ones.  Long sentences often can be made more comprehensible with the use of bullets or numbered lists.  Sentences that are initially long when drafted can be revised into two or several shorter sentences.

Why does it matter?  Continue reading


How To Order Your Arguments

As a very general rule, arguments in a brief should appear in order of descending power or importance.  A judge may stop reading on reaching a clearly winning argument or on deciding that the opening briefing is so weak as not to justify more time.  Either way, there is no benefit in saving the best for last.  There are a few exceptions:

  • Jurisdictional arguments normally go first, even if they are not the strongest.  If the jurisdictional argument is a winner, the court has no power to rule on the remaining arguments.  A judge may not appreciate having to read pages of substantive arguments before reaching a dispositive jurisdictional point.
  • Other arguments that will be dispositive if accepted, like statute of limitations, should appear early in the brief on the same reasoning.
  • Arguments that raise the rights of absent third parties often should lead.  A court will not rule on the merits in the absence of an indispensable third party, so it makes sense to resolve early whether the third party must be joined.
  • Very short arguments might be offered early even if they are not the strongest.  This depends on the relative strength and the characteristics of the various arguments.  A short argument that accurately and fairly casts the opponent in a negative light might be made early so that the remaining arguments are seen in that light.  A weak and technical short argument is best left to the end or omitted.
  • The number and complexity of the facts required to present the argument may affect the placement.  A judge may absorb all the facts at once, in an opening presentation, or a judge may more easily absorb an initial overview of the facts followed by briefing of specific arguments and the facts relevant to those arguments.
  • Some arguments build on an earlier argument or make sense only after an earlier argument. Look for any logical connections that impact the ordering of the arguments.

Eight Tips for Successful Proofing

Careful proofing is as important as excellent writing.  Errors and omissions slip into briefs so easily, especially if several people are working on it.  There are many good tips for proofing, all best employed a day or more after the writing is done:

  1. Print and proof the document in hard copy;
  2. Read the document aloud, forcing yourself to acknowledge each word, or read with your finger pointing at each word;
  3. Never try to proof for everything at once—proof the text, then the headings, then the caption and ending;
  4. Proof separately for any attachments, exhibits, appendices or other separate matters that need to be with the document—are they there, are the numbers correct, is each what the text says it is?;
  5. Always do the math—if the document contains any calculations, do them again; add up the columns; do the subtraction; be sure the numbers are correct in the right alignment;
  6. Check proper names, company names, addresses, and the like.  Be especially sure the names of the judge and your client are spelled correctly.  Judge MacBride does not appreciate being identified as Judge McBride.
  7. If you know you make a recurrent type of error, search for it separately.  You may be able to have the computer spellchecker catch many types of errors, such as pubic for public and trail for trial, by removing the word that is likely to be undesirable from the dictionary.
  8. Don’t trust the auto-correct dictionary.  For several years, for example, the dictionary in one major word processor automatically corrected “tortious” into “tortuous.”  Unless your eye is on the word at the moment it auto-corrects, you are unlikely to discover the substitution until it is embarrassing.

Practical Citation Rules

There are many citation styles one could use in writing briefs—The Bluebook, The Redbook, the University of Chicago Manual of Legal Citation, the California Style Manual, and so on.  One is not inherently superior to another.  If the court that will consider the brief has a required style, then that ends the matter.

The fundamental rules for good citations are a very few:

  • citations must provide everything the reader must know to locate the source;
  • citations need to be simple, easy to understand and remember; and
  • citations in a single brief need to be consistent in format and presentation.

Every deviation from consistent citation style that is not obviously justified by some immediate need to provide additional information is a distraction to the reader.  Every distraction pulls the reader away from the brief’s goal (affirmance or reversal).

Despite the various instructions to use supra and infra, it is better to give full citations to cases every time that you cannot use Id.  The benefits are several:

  • you can move sections of the brief around freely when you realize that a later argument is stronger than first thought or logically belongs earlier in the brief.  There is no need to search for the parts of citations omitted when supra is used.
  • the court can see which circuit and court decided the case.  If you spend the extra time to locate authority in the same circuit, why lose the benefit of that information in the second citation?
  • using supra doesn’t save that much space anyway.

Abbreviations are another place where you may decide not to follow the rules too strictly.  Consistency in abbreviations may be more important than perfection in abbreviating in accordance with a long list of hundreds of terms.  Abbreviate when you really get some benefit, such as Mgmt. instead of Management, and when the abbreviation is common, such as Ins. for Insurance and Co. for Company.  Memorize the 20 or 30 words that are worth abbreviating consistently in case names and write all others out in full.  This approach allows your writing to flow without having to look up an abbreviation or think about whether to abbreviate words in a citation.


Have You Seen the Whole Statute?

Many laws are enacted as a coherent whole and then divided and separated when they are codified.  Part of the statute may be sprinkled into the jurisdiction and procedure code, part into one substantive code and the rest into another.  Additionally, within one code, sections of a single statute may appear widely separated.  Two federal examples:

  • The Chief Financial Officers Act of 1990 appears in the following United States Code titles: 5, 31, 38 and 42.
  • The Child Abuse, Domestic Violence, Adoption and Family Services Act of 1992 appears in United States Code title 42, but part is codified between 5101 to 5118e and the rest between 10401 to 10415.

Reviewing the entire statute may reveal arguments that are not apparent when only a segment is examined.  The entire statute may reflect a statutory intent that is not immediately apparent from isolated sections.  Definitions may be codified in one section that illuminate the meaning of other, distant sections.

To locate the whole statute, use the historical references to trace back to the original statute as enacted.  Different states offer different tools for locating session laws, enrolled bills and other acts of the legislature.  Among other sources, see


Researching Uncodified Law for Appellate Briefs

If things did not go so well in the trial court, an attorney may want to return to the books for more research for the appellate briefing.  In cases involving statutory issues, there may be relevant law that has not been codified that may make the difference.

It’s easy to assume that the code book in your hand or the sections that appear initially on the computer screen contain all the laws.  Not so.  Legislatures enact many laws that are not codified at all or are codified only in part.  Common examples include:


What to Do When You Think You Are Done with Your Appellate Brief

Consider whether you are really done.  Have you answered the question(s) that were asked?  All the questions?  Are all the factual and procedural statements supported by citations to the exhibits?  Are there any omitted evidentiary points that may benefit your client as to burden of proof or presumptions in favor of your client or against your adversary?NYcourt

Then follow these steps in the order that makes sense based on the nature of the brief and your work:

One time, proofread just the headings or captions.  Cut and paste the headings into a separate document.  Read them apart from the brief.  Do they make sense?

Are the captions parallel in structure and tense so that they flow pleasingly?

Should you add subheadings to assist the reader or make other adjustments?

Is there a step skipped over in the reasoning? Continue reading


Brief Writing on a Computer

In the “olden days,” as recently as the 1970s, briefs had to be written by hand or dictated, then typed on a typewriter.  An omission or error often meant having to retype the entire page.  The computer can be used simply as a fancy typewriter, but writing on the computer is fundamentally different in kind as well as in quality. The following comments assume the writer starts with the appellate record or an opening or opposition brief on appeal and is required to produce an opening, opposition or reply brief:

Continue reading


New Issues That May Be Raised on Appeal

As a generally applicable rule, new issues cannot be raised on appeal.  The record is silent and the issue is commonly new to the prejudice of one party.  Appellate courts have little or no difficulty in rejecting the introduction of new issues on appeal in most instances.

General rules generally have exceptions, as is true here.  Although there are a number of new issues listed that may be raised on appeal, the reality is that new issues are successfully raised on appeal very rarely.[1] The new issue may be introduced by one of the litigants or, less often, by the appellate court sua sponte.[2] Most often, the successful new issues concern either the court’s own power and protection or the protection of absent or incompetent persons. In civil cases, litigants select their attorneys and normally are bound by the errors and omissions those attorneys make. Absent compelling circumstances, trial and appellate courts normally should not come to the aid of litigants.[3]

Recognized exceptions that courts may apply in many jurisdictions include the following, although variation among the States and in differing circumstances prevents certainty.

Continue reading


Whether To Intervene or Seek To Be Amicus

NYcourtA nonparty may be vitally interested in the outcome of pending litigation or a pending appeal.  The interest may be so great and so direct as to require that the nonparty be made a party.  Such a nonparty is frequently but unfortunately spoken of as indispensable.[1]  When the interest is somewhat less, however, the nonparty may seek leave to intervene or to appear as an amicus or, alternatively, watch the litigation from the sidelines.[2]  What considerations bear on the choice of intervention and appearance as an amicus?

Most significantly, an intervenor is bound as a party, whereas an amicus curiae is not a party and is not bound by the judgment.[3]  That distinction is a strong encouragement for a nonparty to proceed as an amicus curiae and retain the ability to fight again in the future, especially if the nonparty’s ability to participate in and influence the trial, appeal, and outcome as an intervenor are not entirely clear. As a party, an intervenor will have the right to appeal, denied to an amicus, but may be held liable for attorney fees and costs.[4]  An intervenor will be bound by the judgment for purposes of res judicata and collateral estoppel, while an amicus will not.

Continue reading


Don’t Underestimate the Table of Contents

Many brief writers mistakenly think of the table of contents as a nuisance that their secretaries must complete before briefs are finished. This fundamental error can profoundly affect the quality of their documents.

Once a significant part of a document has been prepared, and often when a discrete segment is completed, the author should pull the table of contents that then exists to study. That table may reveal a missing argument to be added, an editorial adjustment to be made in the ordering of existing arguments, a problem in the logical flow of the document, and other issues to be addressed. For a long document, this process may need to be repeated multiple times.

Pulling the table is not difficult.  The headings can be cut and pasted into a separate document.  The page numbering is of little importance and will change, so it’s only the wording that is needed.

When the document nears completion, the table of contents should be pulled again and closely examined.

  • Are the headings that form the table in parallel format, typically all affirmative sentences? The table is disjointed when some headings are sentences, others phrases or single words.  A rare exception may arise if all subheadings are a single word or short phrase.
  • Is there something missing? Even if the point is in the brief, some courts will deem an argument waived if it is not captured in a heading. Moreover, this review may be your chance to realize that an entire argument has accidentally been omitted.
  • Is there a logical flow from one part of the document to the next?  Do the headings carry the reader forward?
  • Does the table constitute a stand-alone short statement of all the arguments? A judge may read the briefs a week or more before oral arguments. If your table provides a stand-alone statement of your arguments, it can refresh the judge’s recollection easily on the day of arguments.

A compelling table of contents may be the best selling point possible for your arguments. Don’t pass up the chance to use it to make your arguments clearer and more accessible.



Thousands of Appellate Briefs on the Internet

8122523_ab151ea98b_zSample briefs written by experienced attorneys can be an excellent source of information and guidance in drafting briefs, both as to style and substance.  No matter how experienced a writer may be, there are things to learn from the ways other writers approach a problem.

The Internet makes available a variety of appellate briefs worthy of review.

Continue reading