An appellate brief is your best chance to argue why the reviewing court should reverse or affirm a lower court’s judgment. Most appeals are decided without an oral argument. Even in instances where there is an oral argument, judges believe that briefs have been far more critical in the decision-making process.
An experienced appeal lawyer understands the importance of a good brief and has the experience to address the needs of each case. Having prepared countless appellate briefs over the years, here are a few things that we consider very important.
It is customary to begin a brief with the events that led to the controversy and a short description of the proceedings. However, creatively packaging your arguments can help clinch the deal.
For example, the Supreme Court was asked to consider the interpretation of two complex, interrelated statutes: one involving regulation by the FDA and the other concerning patent law. The winning brief opened its argument with a four-page description of the statutory scheme. Not one sentence of this description was disputable or argumentative. The passage also gave the Supreme Court the framework to understand the complete brief, including the statement of facts and the conclusion.
Unless it is necessary, experienced appeal attorneys stay away from disputing facts. Instead, they attack the issue of law. It is the job of the lower court to evaluate evidence and make an informed decision about facts. Appellate courts prefer to stick to the factual findings decided in the lower court.
The Standard of Review provides criteria upon which the case will be heard. The appellate court will decide a case based on the standard of review, so briefs must always be drafted based on the Standard of Review.
But the most important thing that every appeal attorney must do is review and edit the brief several times to look for mistakes, including removing unnecessary words, jargon, and adjectives.
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