In appellate law the first step to taking the errors you preserved during the trial court and transforming them into a strong appeals case is knowing how to write a strong brief.  It is also the first step in trying to defend a ruling in a court if your client was victorious.  This is a huge part of the legal world as a whole and is something lawyers need to understand how to do.  D. Matthew Allen and Sylvia H. Walbolt and two very experienced appellate lawyers and legal writing specialists.  They both have immense knowledge and experience in the field and understand how to differentiate between a strong and weak legal brief.  Writing a strong brief is crucial to starting your argument well and having good standing when you actually present your case before the appellate court.  Allen and Walbolt have come together to explain their Ten Commandments to Writing Briefs which is a compilation of the ten key components they feel should be a part of any brief written for appeal or as the appellee.  This is key for me as a young student to understand as it is such an important part of law.

 

The first Commandment addressed in the paper is the understanding and presenting of the fact that your client should win this case and why.  It is important to present the idea that ruling in favor of your client is the morally and factually correct thing to do.  This can be done before the trial has even started.  You should make it seem morally appealing to a judge that what is most fair is ruling in favor of your client.  This is important to creating an immediate positive view of the court.  While it is hard to predict the way they will rule on specific pieces of evidence or specific arguments, it is always important to ensure that you present the case from the best moral standing possible as well to possibly persuade a judge as much as possible.

 

The second key Commandment highlighted in the passage is the importance of understanding and writing within the bounds of the standard of review of the specific case.  Standard of review means the amount of deference or respect they give to the ruling of the previous court.  This changes from case to case.  The three main types of standard of review are abuse of discretion, substantial evidence, and de novo.  For abuse of discretion you are arguing that there is error in the actual decision of the prior court on an issue.  This is very hard to prove as it means that the judge must have made an egregious or ridiculous error in proceedings or the appellate court will affirm the decision.  For substantial evidence, you are arguing that the evidence displayed and trial proceedings should have clearly ended in a different verdict.  For a court if any reasonable person could have argued that the case was decided correctly, they will affirm it and will only justify an appeal if they do not feel this is the case.  This means that the actual feelings or decision of the appellate judge do not apply to whether or not it is affirmed.  De novo on the other hand means the court is looking at the case with a fresh set of eyes.  A common example of this is with contracts where the court will start from the beginning and make their own decision whether or not it affirms or overrules the decision of the previous court.  For lawyers, it is crucial to stay focused in their briefs and only address issues that are pertinent to the standard of review.  If you feel the case was decided unfairly but you are under abuse of discretion, it does not matter and what matters is proving that the judge is objectively out of line.  This means lawyers need to keep emotions out of briefs and stay focused.

 

Commandments 3 and 4 go together.  3 reminds writers to create an outline before they even begin writing.  How do you want to create different sections?  How can you logically structure your brief so it flows from one thought to the next.  This is important because it allows you to create a plan for your writing and work to maintain this throughout your brief.  This ties into 4 which is about mapping; using headings, subheadings, and sections to help direct your reader through your brief is important.  Appellate court judges are still generalists in the field of law and may or may not fully understand or be experts in the subject matter of the case.  Informing them is important and allows them to have a greater understanding of what point you are trying to get across.  Mapping also helps you stay organized throughout your brief and allows you to have specific sections where you discuss different components of the case.  

 

The 5th Commandment refers to the thought that should go into laying out precedent in your case.  This can be seen by citing cases, common law, statues, or dicta.  Dicta should be reserved if none of the other options are available as it has no legal binding and is simply the opinion of a judge but can still be used to back your argument.  What is important about this is how you frame these tools in your brief.  Having a long string of case names does nothing for you because it simply forces a judge to dig into your appendix or other places to find what they mean and having too many can mask your strongest points.  It is important never to bury the strongest tools you have in a brief.  This means choose the best cases or statutes or resources that can back your argument and explain them with the most important details and components in your favor.  While it would be ideal to have precedent in cases that had as similar a ruling as possible to the one you are looking for, work with what you have and look to make the most of the appellate material in front of you.  Additionally,

Commandment 6 is all about the importance of strong transitions throughout your work.  This ties into 4 as mapping is a huge part of this and transitions with strong topic sentences can also be strengthened and made clear and obvious with headings.

 

Commandment 8 explains that it is crucial to be as clear and concise as possible throughout your brief.  Stray away from long or niche Latin phrases or long wordy components and use simple and well written sentences that are easy to understand and comprehend.  This is the best way to ensure a judge is able to get your point and internalize it.  Commandments 7 and 9 focus on editing.  It is crucial to read, read, and reread in order to ensure your brief is written the best way possible.  Mistakes are unacceptable in the brief.  9 differentiates from 7 because it recommends finishing days early, taking a break from the brief, and then eventually rereading it again and making final corrections to make it as perfect as possible.  

 

Commandment 10 is perhaps the most important.  It explains the principle of honesty in your writing.  There is no point in omitting or hiding anything negative in your brief because the other side will bring it up regardless in theirs.  Do not let your court learn something for the first time about the trial from the opposing sides briefs.  Be honest about possible errors in court and simply explain why it does not matter which you would have to do regardless.  Highlight negative precedent so that you can argue it from your side.  You should structure your brief to give no surprises when they read the other one.  

Understanding how to write a strong brief is a fundamental component of appellate law and is something lawyers have to do in every case they are working on.  Writing the most persuasive yet understandable and fair brief you can is crucial to starting a trial on good footing for a ruling in your favor.  In future research I will look at what specific arguments are addressed in court and how they are presented but this is a huge footstep in the right direction for my work.