Appellate Adventures, Chapter 14: "More Tips on Writing the Argument"

After a rather lengthy hiatus (due to the pandemic), our story resumes. (If you like to see any prior chapter, just send me an email.).

Rising star trial lawyer Flash Feinberg had just lost a case. Judge Buller (aka the "Mad Bull") granted summary judgment against Flash, rejecting Flash's 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 at a tennis tournament.

With the guiding hand of Patty Plato (his former law school professor), 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, then drafted an outline of his opening brief. Plato advised him how to draft the procedural facts section of the brief, and then the substantive statement of facts.

Flash said, "Last time we met, Professor, you gave me some good ideas about how to word the headings of the major issues in the Argument section of my opening brief -- how to focus on trial court error and the correct standard of review. What else should I focus on?"

Plato replied, "Where you can, break your major issues for reversal into sub-issues -- each with a separate subheading. Because each subsection will be shorter than the whole section would be if you just lumped everything together, subsections make the brief easier to read and easier to write."

"How could I do that in my case?" asked Flash.

Plato said, "Let's start with the outline of major issues we put together last time we met:

I. The Trial Court's Finding That Appellant Breached the Contract Was Based on a Misinterpretation of the Contract.

II. There Was No Substantial Evidence That The Breach, If Any, Was Material.'

III. The Trial Court Committed Prejudicial Error By Denying Appellant's Request for a Continuance to Obtain Expert Testimony.

"Issue III, for example, might be broken up into subsections this way:

III. The Trial Court Abused Its Discretion and Committed Prejudicial Error By Denying Appellant's Request for a Continuance.

A. The Trial Court Abused Its Discretion.

B. This Error Was Prejudicial."

"That doesn't look difficult," said Flash.

"It usually isn't," replied Plato. "In fact, often you can break up the subsections into even smaller sub-subsections, like this:

III. The Trial Court Abused Its Discretion and Committed Prejudicial Error By Denying Appellant's Request for a Continuance to Obtain Expert Testimony.

A. The Trial Court Abused Its Discretion.

1. The Expert's Testimony Was Relevant and Material.

2. Appellant Made Reasonable Efforts To Present This Evidence At The Earliest Opportunity.

B. This Error Was Prejudicial.

1. Whether Appellant Used Illegal Drugs Was A Major Issue.

2. No Other Scientific Evidence On This Issue Was Presented At Trial.

3. This Was A Close Case, Where This Additional Evidence Might Have Altered The Trial Court's Ruling."

Flash said, "OK. That seems to cover the outline of the argument pretty well. Now, can you give me some ideas about how to write the argument section itself?"

Plato replied, "Sure. Usually, this is the best way to organize each section -- to make it easiest on the reader:

• Introduce the section by stating -- very briefly, in two or three sentences -- what the trial court did and why it was wrong.

• Then state the standard of review applicable to this issue.

• Then summarize the relevant law (statutes and cases).

• Finally, apply the law to the relevant facts."

Flash asked, "I guess the discussion of the law is the most important part, since we're in an appellate court. Right?"

"Sometimes, but not the way most lawyers present it -- just summarizing a bunch of cases. If you found a theme of injustice, work it into your discussion of the law. Focus on how the cases can help you show that your client was not treated fairly. So when discussing the law, go beyond simply summarizing the facts and holdings of cases and the language of statutes. Discuss the policies behind those authorities. Then, when applying the law to the facts, explain how a ruling in your favor will further the policies of the cases and statutes.

"In your brief, for example, when discussing the cases that deal with the meaning of 'material breach,' try to find cases that explain the consequences of such a finding: termination of a contract that the plaintiff might have relied on and invested in. Then apply those policies to your case, perhaps arguing (if the record permits) that termination of Debbie's contract might force her to uproot her family from the community, pull her kids from school, and leave Club members who trained with her without their favorite pro."

Flash asked, "Any other tips re how to discuss cases?"

"Yes. Be absolutely reliable when you discuss a case. Never cite a case for a proposition it does not support. If you want to 'stretch' a case to stand for something it does not explicitly say, explain what you are doing. The credibility of your entire brief is at stake here."

"How should I deal with my opponent?" asked Flash.

Plato advised, "Don't attack opposing counsel personally, and don't call his arguments 'ridiculous' or 'outrageous.' Judges often see such attacks, and they will give greater respect to a lawyer who acts in a professional manner.

"In fact, throughout your brief, use moderate language, especially adjectives. One of the most overused word in briefs is 'clear,' as in 'The law on this is clear' and 'The trial court was clearly wrong.' If things were 'clear,' you wouldn't be appealing. And if something really is 'clear,' show it, and you don't need to say it."

"How should I deal with the trial judge?" asked Flash

"Gingerly," replied Plato. "On appeal, your real opponent is not the opposing party, but the trial court. That's who you're trying to get reversed, and that's whose rulings and reasoning the appellate judge will be most interested in. So find the trial court's reasoning and rebut it. Sometimes it will be in a statement of decision, and sometimes it will have been delivered only orally, so look for it in the reporter's transcript. As the appellant, you need to challenge the trial judge's rulings and reasoning, but do not say that the judge himself was 'biased' or 'ignorant.'"

"Thanks," said Flash. "Any other tips on writing style?"

Plato said, "Keep it simple. You're writing for people who are reading for work, not for pleasure, so they want to get through your brief quickly and easily. So,

• Make your Argument section concise and clear.

• Don't use unusual words that the judge might need to look up. She might not have time, just skip over the word, and not get your meaning. And, this will annoy her.

• Write short sentences. If you need a model, try Hemingway, not James Joyce.

Flash asked, "Any final words of wisdom?"

Plato said, "Yes. Make only reasonable arguments, and concede issues where contesting them would make you appear unreasonable. In fact, so long as it doesn't cost you your case, look for something to concede. That can make quite an impression -- because appellate judges hardly ever see this." 