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


Five Writing Tips That I Wish I Knew Earlier — Tip # 1: Stress Positions

I wish I had learned some things earlier.

That’s especially true when it comes to my writing.

So I thought I’d share five writing tips that I wish I had known earlier.

The first tip concerns an edit at the sentence level. Other tips will address changes at the paragraph and word levels.

Tip # 1: Place important and new information at a sentence’s ending.

This one is counterintuitive: a sentence’s most valuable real estate is not where it starts but where it finishes. At the sentence’s ending, a reader naturally stops — it’s sometimes called a “stress position.” These natural pauses give a writer an opportunity: 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


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

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


Want To Write Like Justice Kagan?

We’ve talked before about how Justice Kagan is one of the Supreme Court’s most interesting writers. A thoughtful new article by Laura Krugman Ray, Doctrinal Conversation: Justice Kagan’s Supreme Court Opinions, builds upon that topic by exploring some of Justice Kagan’s most effective writing tools. Here are a few that make Justice Kagan’s work so reader-friendly:Official Informal Portrait choice

Kagan often opens a sentence with a direct invocation to the reader:

  • Consider first what the two statutes tell a slaughterhouse to do”
  • Imagine the converse of the statute described above”
  • Pretend you are financing your campaign through private donations.”

She uses a “generous sprinking” of informal and even colloquial diction:

Continue reading


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.

Appellate Savvy: Three Tips for the Circuit Court Practitioner

Appeals can be tricky. They are expensive to litigate and difficult to win. They also take time, particularly in the Ninth Circuit, which is the busiest Court of Appeals in the United States. But, appellate practice can be rewarding, particularly if you can avoid common pitfalls and understand your chances on appeal before you get started.

Here are three tips.

Continue reading