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


Supreme Court and Local Governments: What Will the Court Accept Next?

While the Supreme Court’s next term officially begins on October 6, its “long conference” is September 29.  At this conference the Court will review a backlog of petitions that have been piling up over the summer.  SCOTUSblog complies a list of petitions that it thinks have a reasonable chance of being granted.  Eight of the petitions the Court will consider either during the “long conference” or at a later conference directly involve or impact local governments.5554035521_f6b59ccafa_n

Public nuisance.  A Brighton, Michigan, ordinance presumes that an unsafe structure will be demolished as a public nuisance if the cost of repairing it exceeds its value.  The owner has no right to repair the structure.  Brighton property owners wanted to repair two unsafe structures even though Brighton estimated it would cost almost double the property value do so.  In Bonner v. City of Brighton, Michigan, the property owners claim the ordinance violates substantive and procedural due process.

Employment.  Under federal employment law to bring a discrimination claim a plaintiff must prove that an “adverse action” occurred, and to bring a retaliation claim a plaintiff must prove a “materially adverse action” occurred.  The question in Kalamazoo County Road Commission v. Deleon is whether either can be proven when an employer grants an employee’s request for a job transfer (and the new position turns out to be less desirable than the old position).  The International Municipal Lawyers Association (IMLA) filed an amicus brief in this case. 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


Can You Hear Me Now? If Not, Read This

In T-Mobile South v. City of Roswell, the Supreme Court will decide whether a letter denying a cell tower construction application that doesn’t explain the reasons for the denial meets the Telecommunications Act of 1996 (TCA) “in writing” requirement. CellTower The State and Local Legal Center’s (SLLC) amicus brief, which IMLA joined, argues it does.

T-Mobile applied to construct a 108-foot cell tower in an area zoned single-family residential.  The City of Roswell’s ordinance only allowed “alternative tower structures” in such a zone that were compatible with “the natural setting and surrounding structures.”  T-Mobile proposed an “alternative tower structure” in the shape of a man-made tree that would be about 25-feet taller than the pine trees surrounding it.

After a hearing, where city councilmembers stated various reasons for why they were going to vote against the application, Roswell sent T-Mobile a brief letter saying the application was denied and that T-Mobile could obtain hearing minutes from the city clerk. Continue reading


IMLA Files Amicus Brief in Schultz v. Wescom

On Monday, IMLA filed its brief in Schultz v. Wescom, a petition stage Supreme Court case, which involves a question of whether a municipality/police officer may immediately appeal a decision by a district court to defer the issue of qualified immunity until NinthCircuitthe completion of discovery.  The Ninth Circuit held on appeal that there is no appellate jurisdiction of a rule 56(d) deferral for a limited time to conduct discovery as it does not amount to a denial of qualified immunity. The Circuit Courts are split on this question with the Seventh and Ninth Circuits holding that such a decision is not appealable on an interlocutory basis, while the majority of the other Circuit Courts hold that such a decision is immediately appealable.

IMLA’s brief argues that the purpose of qualified immunity is to shield officers from the costs of having to go through the litigation process, particularly costly discovery, and the Ninth and Seventh Circuits’ approach effectively denies police officers in those jurisdictions the benefits of qualified immunity and goes against Supreme Court precedent.  To read IMLA’s amicus brief in this case click here.

Image courtesy of Flickr by Ken Lund (creative-commons license, no changes made).


IMLA Files Amicus Brief in City of Newport Beach v. Pacific Shores Properties, LLC

On Monday, IMLA filed its brief in City of Newport Beach v. Pacific Shores Properties, LLC, a petition stage Supreme Court case, which involves questions of discrimination under the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA). Specifically, the issue before the Supreme Court is whether a disparate-treatment claim under the FHA and/or the8122523_ab151ea98b_z ADA that challenges a facially nondiscriminatory law on the ground that the law nevertheless intentionally discriminates on the basis of disability can prevail absent proof of discriminatory effects.

In this case, the Ninth Circuit held that the plaintiffs had created a triable issue of fact as to whether the City had violated the ADA and FHA when it enacted the zoning ordinance restricting the areas of the City in which group homes for recovering addicts, as well as other group residential living facilities, can be located. According to the Ninth Circuit, Continue reading


Birth Control Mandate Case Also a Land Use Case?

As usual, on the last day of the Supreme Court’s term it released its opinion in the biggest case of the term:  Burwell v. Hobby LobbyGavel The Court held 5-4 that the Affordable Care Act’s birth control mandate violates the Religious Freedom Restoration Act (RFRA), as applied to closely held corporations.

Though not obvious, this case may have a significant impact on land use regulation.  For this reason, the State and Local Legal Center (SLLC) filed an amicus brief, which Justice Ginsburg quoted in her dissenting opinion. 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

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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


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:

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IMLA Joins State Partners To Address Abstention Issue Before Supreme Court

When is it appropriate for a federal court to decide a case that is pending in state court?Supreme Court

On the Supreme Court’s docket is a case that addresses this very issue, giving the Court the chance to once again ponder the limits of the Younger abstention doctrine.

That case, on appeal from the Eighth Circuit, is Sprint Communs. Co., L.P. v. Jacobs, Case No. 12-815.

At issue is whether Younger abstention applies only when the underlying state proceeding is “coercive” or whether it is sometimes appropriate for federal courts to abstain from hearing cases that are “remedial” in nature.  Many cases dealing with Younger abstention have turned on that distinction. But the difference between “coercive” and “remedial” proceedings, and the way courts classify cases as one or the other, is anything but clear-cut.  Indeed, the distinction could turn on whether the government or a private party initiated the action, as “coercive” proceedings are typically described as those that are criminal or quasi-criminal in nature.

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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.



The Supreme Court’s Best Writer—And Other Tidbits.

Some fun items about the Supreme Court.

(1) The Supreme Court’s Best Writer
Legal-writing guru Ross Guberman recently guest blogged at the Volokh Conspiracy. He’s the author of Point Made, which dissects appellate briefs from leading attorneys.

He turned his attention to the Supreme Court’s best writers.

Here’s his case for Chief Justice Roberts. And here’s his case for Justice Kagan.

They’re both great picks.

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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