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Appellate judges are busier today than ever before, and that situation is likely to get worse before it gets better. [See Levy, "Appellate Overload," NLJ, May 22]. This appellate overload has important implications for effective appellate advocacy. Unfortunately, practitioners too often have failed to recognize these consequences. This is one reason for appellate judges’ periodic criticisms of the quality of lawyering in their courts. See, e.g., Silberman, Plain Talk on Appellate Advocacy, Litigation, Spring 1994, at 3. Seven pillars of effective appellate advocacy With apologies to T.E. Lawrence (and in turn, the Bible), here are seven pillars of effective appellate briefs recommended by the judges themselves. 1. Make the case sound important and interesting. A brief must, of course, inform and persuade. But keep in mind that your brief is only one of several (perhaps many) that the judges are reading in the case, and that your case is only one of some 20 or even 30 that the judges are preparing for at a given time. The first task, therefore, is to convince the judges that your case is important and interesting. To show that the appeal warrants the judges’ careful attention can be critical to the ultimate objective of persuasion. It also is important in other respects as well. For example, in this age of both fewer and shorter oral arguments, an important and interesting case is more likely to be given a meaningful hearing. Similarly, with the vast majority of appeals disposed of by unpublished opinions or summary orders, a significant case is more likely to result in a full precedential decision. 2. Present arguments that cannot be misunderstood. Busy appellate judges simply do not have time to re-read briefs multiple times, or to work their way through obscure or convoluted arguments, or to explore every tangential refinement or remote implication presented in lengthy textual footnotes. See 20 Questions for Judge Bryson, http://howappealing.law.com/2003_09_01_appellateblog_archive.html (Sept. 2, 2003, 00:01 EST). Effective appellate counsel help the courts (and thereby help their clients) by filing briefs that can be easily grasped and readily understood on a first reading. Better yet, they strive for briefs that not only can be understood, but that cannot be misunderstood, even on a hurried read. 3. Shorten and simplify. Effective briefs are concise and focused. As the judges themselves repeatedly tell us in articles and speeches, they appreciate brevity and are more likely to grasp (or even to read thoroughly) a short brief. A brief should not be a word longer than it needs to be. Remember: The 14,000-word limit in the Federal Rules of Appellate Procedure is a ceiling, not a requirement or even a target. See Kozinski, The Wrong Stuff, 1992 BYU L. Rev. 325, 326; Wald, 17 Tips from 17 Years on the Appellate Bench, The Appellate Advocate, Fall 1996, at 1, 4 (American Academy of Appellate Lawyers); Michel, Effective Appellate Advocacy, Litigation, Summer 1998, at 19, 23; Bauer & Bryson, The Appeal, in Master Advocates’ Handbook 261, 269 (1986). This process of winnowing should begin at the very outset of preparing the appeal. For example, it is critically important to narrow the number of issues presented. Rarely will a lower court commit a large number of significant errors; even more rarely will all those errors have an equally good prospect for appellate reversal. See Bauer & Bryson, at 274. If an appellant does not win on its strongest issues, it is unlikely to prevail on a laundry list of subordinate arguments. Rather, inclusion of such weaker points will serve only to clutter the brief and take attention (and space) away from the better issues. A lack of selectivity also will signal the court that counsel either has not thought through an effective appellate strategy or is not an experienced appellate practitioner. See Silberman, at 4; Kozinski, at 327; Wald, at 4; Michel, at 19, 22; Bright, Appellate Briefwriting, 17 Creighton L. Rev. 1069, 1071 (1984). Use standard of review to select and frame issues 4. Utilize the standard of review. The standard of appellate review defines the essential nature of the appeal. It is, in essence, the job description for the appellate judges. Under the standard of de novo review, it is the responsibility of the appellate court to decide for itself the correct resolution of the issues presented on appeal. In exercising this role, the appellate court accords no deference to the lower court. By contrast, under a deferential standard of review such as “abuse of discretion” or “clearly erroneous,” the appellate court affords significant deference to the lower court and determines only whether the action below fell within a broad range of permissible outcomes. If so, it will be affirmed, even if this is not the result the appellate judges would have reached for themselves if they had been sitting in the place of the district judge in the first instance. Appellate judges repeatedly have emphasized the crucial importance of the applicable standard of review in their analysis and disposition of issues on appeal. See Michel, at 19-20; Bauer & Bryson, at 275-76; Garth, How to Appeal to An Appellate Judge, Litigation, Fall 1994, at 20-23. Proper use of the standard of review to select and frame the best issues for appeal, and thus to focus the case for a busy court, is a hallmark of effective appellate brief writing. 5. Have a theme. The best appellate briefs are more than the sum of their discrete arguments. Instead, they have a theme that puts the case in a favorable context, relates the arguments to each other in order to integrate and reinforce them, and assists the judges to conceptualize the appeal in a helpful way. See Bright, How to Win on Appeal, Trial, July 1996, at 68. For the legal arguments, this will include the “why” of the case. That is, in addition to the specific arguments based on such things as text, history and precedent, the brief should clearly convey the fundamental reasons why its positions are sound and should be accepted. This not only will make the arguments more persuasive but also will encapsulate the crux or “jugular” of the case for busy judges. Similarly, the facts in the brief should tell a story. Lawsuits arise from events in the real world, and every case-no matter how seemingly dull or straightforward-involves a story. Such a presentation, especially if confined to the essentials, helps to engage busy judges by making the facts more interesting, easier to understand, and more readily remembered. See Wald, at 5; Bauer & Bryson, at 273. 6. Use roadmaps. It is critically important to assist busy judges to follow and understand a brief by using a variety of guides. Such “roadmaps” include the headings and subheadings in the various sections. These dividers provide guidance to the reader and break up otherwise long and undifferentiated pages of text. See Michel, at 21; Bauer & Bryson, at 270, 273. Also helpful are short introductions or overviews in the major sections of the brief. A useful exercise is to read the table of contents to see if the captions properly convey the structure and substance of the brief. In fact, the table is the first thing some judges read to get an immediate overview of the case. See Michel, at 21. Likewise, the summary of argument serves a crucial role in reducing the argument to its essentials. An effective summary should be a persuasive but condensed presentation of the overall brief. Indeed, some judges use the summary as a stand-alone section. For example, they might read it first to get a quick sense of the issues, or return to it later to refresh their recollection of the principal contentions. See Michel, at 21; Garth, at 24. The elements of good writing also make life easier for busy judges. Such basics as topic sentences, conclusions and transitions are prerequisites for an effective brief. Again, it is constructive for counsel to scan a draft section by reading only the first and last sentences of each paragraph to see if the argument flows in a logical and persuasive way. A pet peeve of judges: too many footnotes 7. Minimize footnotes. This is a pet peeve of many appellate judges. Let’s face it, footnotes are hard to read (particularly long ones single-spaced in small type size) and break up the flow of the argument in text. The risk, therefore, is that busy judges will skim or even skip footnotes. The lessons for counsel are to use footnotes sparingly and not to bury important points in footnotes. A good rule of thumb is to use a footnote only if it is less disruptive than putting the material in text. For example, some lawyers and judges find footnotes useful for long string cites or tangential but nonetheless necessary arguments. By following these principles, appellate lawyers will be better able to serve the interests of their clients and satisfy appellate judges. In the end, however, despite their best efforts, even the most effective appellate counsel must sometimes find solace in the immortal words of former Judge Craven of the 4th U.S. Circuit Court of Appeals: There is only one immutable rule of appellate advocacy that guarantees a successful outcome in every case-Choose the right side. Mark I. Levy is chairman of the Supreme Court and appellate advocacy practice in the Washington office of Atlanta-based Kilpatrick Stockton.

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