Appellate Adventures, Chapter Four: "The Brief: Where Do I Begin?"

MOSKOVITZ ON APPEALS

Rising star trial lawyer Flash Feinberg had just lost a case. Judge Buller (aka the "Mad Bull") had just granted summary judgment against Flash, rejecting his claim that Topspin Tennis Club had breached its contract with Flash's client (tennis pro Debbie Dropshot) by firing her for flunking a drug test.

With the guiding hand of his former law school professor, Patty Plato, Flash had weighed the likely costs and benefits of appealing the Bull's ruling -- and decided to go ahead. So he filed his notice of appeal and his designation of record. [See prior Moskovitz On Appeal columns.]

And now it's time to write the appellant's opening brief.

"Help! Where do I begin?" he wailed.

"Maybe you should start by coming up with a theme," suggested Plato.

"What's a theme?"

"Some reason that would make an appellate judge want to rule for your client. Something that reeks of injustice."

Flash thought for a moment. "Hmm. Let's see. Well, I think The Bull misconstrued Debbie's contract. Even if Debbie flunked a drug test, that would not have been a breach of the employment agreement's requirement that she 'maintain professional standards and high-quality instruction for Club members'. That requirement was about her teaching, not outside activities."

Plato said, "Not bad, but kinda legalish. Does it pull at your heartstrings and scream out 'Unfair!'?" Flash said, "I guess not."

"That's right," said Plato. "Try this, Flash. Pretend you're explaining this appeal to someone who is not even a lawyer. What fact might hit her in the gut?"

Flash didn't need much time to answer that one. "Debbie was a good pro. The Club had given her excellent evaluations of her work for over a year. And the members really liked her -- all except Board member Betty Backhand, who led the vote to fire her. But Backhand wanted to be named head pro herself. This whole dispute was just a gimmick to fire her and give her job to Backhand."

"There's your theme, Flash," said Plato.

"So that's it? That's my brief?"

"No," said Plato. "A theme can be the backbone of the brief, but it's not the whole brief. Think of it this way. If you were the appellate judge, what would you need in order to write an opinion that reverses the judgment against Debbie?"

"Right," said Flash. "I'd need a theme to get the judge to want to rule my way. But an opinion can't just say 'Debbie was treated unfairly, so the judgment is reversed.' I also need some good legal arguments to allow her to write a respectable opinion that goes my way."

"You got it, Flash," said Plato.

"Great!" said Flash. "So, so.... ?"

"So what?" said Plato.

"So where do I start? Actually writing the brief, I mean? Do I start by writing out the theme?"

"No. The theme is what you weave into various parts of the brief. Start by writing an outline. Sitting down to write 'a brief' is too challenging -- it can lead to a bad case of writer's block. If you first construct a good outline that divides the brief into sections, it's much more manageable. Each time you go to work, you'll be writing a specific section, not a whole brief. And an outline will show you the structure of the brief -- how the different parts fit together and support each other."

"So what are the sections?"

"Start with the two big sections that are indispensable: the statement of facts section and the argument section. Later, you can add optional sections -- like an introduction and summary of argument -- if it turns out that they will help make the brief more readable and persuasive."

"That's it? Just two sections? Sounds easy."

"It's not easy, because both the statement of facts and the argument will have several subsections. That's where the outline requires some careful thought -- especially the argument section. In fact, the judge or research attorney might begin reading your brief by examining the argument section of your table of contents, to get an overview of your arguments and see if they are logical, readable, and conform to the standards of review."

"So I start with the statement of facts. I remember what happened, so I just write down what I remember, right?"

"Not quite, Flash. It's a bit more involved than that. We'll get into that in more depth next time."