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Practice Tips

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Briefing Your First Appeal Before a U.S. Court of Appeals

By Michael Williams

 

The call comes in late one afternoon: you’ve been asked to handle an appeal before the U.S. Court of Appeals for the Fourth Circuit. Exciting news; but also news carrying serious responsibility. This is particularly true for the Fourth Circuit, where many cases are decided without argument. Much of the immense responsibility comes at the briefing stage.

 

By following a few simple guidelines, you should be able to declare your first appeal a success.

 

Always maintain your credibility.

Your first appeal is also your first chance to build a professional reputation before the court. Make your credibility priority one. Some steps are obvious—you should always find record citations to support your factual assertions, find legal authorities to support your legal arguments, and correctly characterize those sources when using them. You must tackle adverse authority—or a particularly compelling argument—head-on. You must also be honest in describing the decision under review.

 

But beyond these basics, consider other steps. Among other things, try avoiding adverbs (especially those like “clearly”). Adverbs have a tendency to oversell. If a judge then finds a flaw in your “clearly” correct argument, he might discount everything else you say. Also, except in a truly remarkable case, stay away from any argument that approaches a personal attack on an opposing party or—worse—a lower court.

 

Keep it simple—and short.

Some attorneys seem to treat word counts as challenges to write as many words as possible without going over. You’ll set yourself apart in your first appeal if you show that you can write concisely. Be judicious in selecting which arguments you wish to appeal. Except in a uniquely complicated case (perhaps one involving high stakes and a jury verdict), judges will cast a skeptical eye toward a brief with more than three basic issues. Then, when making those arguments, be equally careful.

 

Avoid needless facts; a complete story is nice, but loading down judges with facts is not. Extraneous dates, for example, can distract the reader and make writing heavy.

 

When making legal arguments, string cites and exhaustive recitations of the law—especially on well-understood matters such as the standard of review—will earn you no friends at the court.

 

Use natural language.

When it comes to language and tone, an effective brief will come closer to a well-researched newspaper story than a law review article. Short sentences and simple words should be your tools of choice. In contrast, avoid unnecessary Latin terms, antiquated words (such as “heretofore,” “aforementioned,” and “hereinafter”), and excessive passive voice. Judges don’t appreciate an abundance of acronyms either; one federal appellate judge even said that overusing acronyms is “a marker, dividing the better lawyers from the rest.” Try to focus less on abstract concepts paired with staid “be” verbs. Rather than keeping it boring, seek out engaging verbs and write about the actors involved in your case—be they courts, the parties, or otherwise. Don’t over-define. If your client is Appellant Chad Smith, and he’s the only Smith involved in the appeal, there’s simply no need for you to insert (“Smith”) after the first use of his name. While you’re at it, call him “Smith” or “Mr. Smith,” not “Appellant.”

 

Make good use of important real estate in the brief.

Whether out of a misguided sense of tradition or something else, some of the best appellate lawyers fail to use valuable parts of their brief effectively. There’s no need, for instance, to open a brief explaining that “Appellant Chad Smith appeals from a decision of the U.S. District Court for …” and so on. Yes, the Court needs to know what you’re appealing, but that can be done while telling your story in a clearer, more persuasive way (if you’re not sure how to do this, consult appellate briefs written by better appellate lawyers, such as Paul Clement, Ted Olson, or Tom Goldstein).

 

In much the same way, don’t waste your last opportunity to talk to the Court (i.e., the conclusion). Too many lawyers end by saying the Court should do “x” or “y” for “the foregoing reasons.” Give the Court one last thing to think about. When writing guidepost portions of your brief—such as the summary of the argument and the headings throughout—think about the language and whether it is advancing your appeal. A bare heading that says “Standard of Review,” for example, won’t help you win.

 

Understand the relevant standards of review.

Speaking of standard of review, keep in mind that the standard decides appeals in a surprising number of cases. If you’re representing the appellant, understand that an abuse-of-discretion standard will present a formidable obstacle to any reversal. So does clear error. A plain-error standard presents an even greater problem for the appellant. At least in the Fourth Circuit, an argument in a civil case that was not raised below can only be reviewed for “fundamental error,” perhaps the most difficult standard to meet.

 

As an appellant, don’t just consider these standards in drafting your argument—consider them in deciding which arguments you wish to raise in the first place. On the other hand, if you’re the appellee, these standards should constitute key parts of your argument. Refer to them in the question presented and then employ them aggressively throughout the brief. Gird yourself for a real fight if the standard of review is de novo (or better yet, find a reason to convince the court that it’s not de novo review).

 

Neatness counts.

Looks matter, so make sure your brief looks great. After reviewing the Court’s rules, consult a reference, such as Matthew Butterick’s Typography for Lawyers, for help in choosing fonts and formats that make for a more attractive brief. Typos and improper citation format cannot be tolerated, so ask someone else to put eyes on your brief before it goes out. If your budget will allow it, use a professional printing service to ensure that the final product reflects the hard work that went into it.

 

Know the rules.

This last tip is one of the most important—you must know the rules. Deadlines, page limits, forms, and brief formatting can be daunting to a novice lawyer. Review the Local Rules before ever putting fingers to keyboard. If questions arise, contact the Clerk’s office. They’ll often have great advice. Don’t allow your appeal to falter due to a basic, preventable error(s).

 

Your first appeal might be challenging, but—with a little work—you’ll also find it deeply satisfying. A carefully crafted brief is perhaps the best way to get the right result for your client, and it will serve as a great start to what could very well be a long career before the Court.

 

Michael Williams is a 2009 graduate of The George Washington University Law School. He is an associate at Bush, Seyferth & Paige and a former clerk on the U.S. Court of Appeals for the Fourth Circuit. He can be reached at williams@bsplaw.com.