WRITING APPELLATE BRIEFS

What is an appellate brief?

What are the steps to writing an appellate brief?

1. Read the case

Carefully read the case that you have been assigned. It might be helpful to read the opinion of the lower courts in your case; sometimes they give you additional facts. See part 3, below, for a description of where to find cases.

2. Identify the issues

What are the primary issues addressed in the opinion? For the purposes of my class, you might also identify additional issues that could have been raised, but which the opinion does not discuss.

3. Begin your research

There are several good places to begin your research. One place to start is by looking to see if there are any law review articles on your case or your issues. Law reviews are academic journals containing articles written by lawyers, law professors, and law students. If your topic is controversial, or if your case is a U.S. Supreme Court case, chances are that you will be able to find one or more relevant articles. The advantage to reading law review articles is that someone else has already analyzed the issues and conducted the research. This doesn't mean you should read only law review articles, but they will help you understand your issues and find relevant caselaw. The library at CSU, Stanislaus does not subscribe to law reviews. You can find most major reviews on Lexis-Nexis . For other reviews, you will have to rely on interlibrary loan, or visit a law library.

Another good place to begin your research is by looking up the cases that the court cited in your case. Obviously, if the court felt that a case was relevant, it probably is. Often, reading these cases will lead you to yet more cases. The library at CSU, Stanislaus has federal court decisions (except very recent ones) and California decisions. U.S. Supreme Court decisions since 1991, recent U.S. Circuit Court decisions, and some state court decisions are available on the World Wide Web . Most other decisions can be found on Lexis-Nexis , or at a law library.

Finally, many students choose to contact the attorneys in the original case. Many attorneys are willing to send a copy of their briefs to students who request them. The names of the attorneys are listed at the beginning of the case, and their contact information is frequently available through West's Legal Directory . If you wish to contact the attorneys, make sure you do so early; it may take some time before they are able to respond to your request.Selected briefs are also available on Lexis-Nexis.

4. Continue your research

Continue to look for relevant cases. Once you have a good feeling for your issues, you can look for cases that discuss them. You can do this using the case indices, which are available in the library, or by using Lexis-Nexis. The key to searching Lexis-Nexis successfully is to have your search terms well defined. For example, suppose I was interested in the constitutionality of hate crime laws. The following searches would probably not be very useful:
• "hate crime"
• "hate crime laws constitution"
Try those searches and you're likely to end up with thousands of cases, most of which aren't useful. This search would likely be more fruitful:
• "((hate /1 crime) or (bias /1 crime)) and (first /1 amendment) and date aft 1985
Don't forget to consider cases that support the opposition's arguments, as well as those that support your own.

5. Finish your research

Many people have trouble deciding when stop researching. A good rule of thumb is that you're done when you keep coming up with the same cases.

Make sure you check that all your cases are still good law. You can do this by using Shepard's Case Citator (available in law libraries) or by using  Lexis-Nexis .

6. Start writing your brief

The key to a good brief is organization! Before you begin writing, think out your arguments and write a detailed outline.

The parts of a brief are as follows (the brief used to illustrate these components was written by Lissa Parker, a student in my Legal Research and Writing class). Note that some of the formatting in the orginal brief, particularly the formatting of citations, has been lost in the conversion to HTML. Your brief should follow the appropriate formatting rules.

• Title Page

 

 
 
 

The Title Page contains the full names of the litigants, the docket number, an indication of whether it is the appellant's or appellee's brief, the name of the appeals court, the name of the lower court, and the names of the attorney(s) who wrote the brief.

• Table of Contents

 

 
 
 

The Table of Contents lists the page numbers of each of the other parts of the brief (except the Title Page and the Table of Contents itself), including the pages on which the main and sub arguments can be found. Obviously, you will probably write this part after the rest of the brief is complete.

• Table of Authorities

 

 
 
 

The Table of Authorities lists every page number on which each case, statute, constitutional provision, law review article, or other authority is mentioned. Give the full and proper citation for each authority.

• Questions Presented

 

 
 
 

The portion should contain a concise (usually one sentence) statement of each of the legal issues that is being appealled. A good attorney should be able to word these issues so as to subtly favor his or her side. The questions usually begin with "Whether," "Is," or "Does".

• Statement of Facts

 

 
 
 

This section presents a relatively detailed description of the events that led to the case. The detail here is much greater than would be given in the "Facts" section of a student brief. Again, a good attorney should pay attention to structure and word usage so as to subtly favor his or her side.

• Summary of the Argument

 

 
 
 

Your arguments for each issue should be summarized in a paragraph or two. Make sure your summaries are in the same order as the Questions Presented.

• Argument

 

 
 
 

This is the main text of your brief. You should present your arguments in order. Each section should be preceded by a brief, one sentence statement of the argument. That statement should be numbered so as to coincide with the Questions Presented, and should be underlined. If your issues are complex, you might want to summarize subarguments as well.

Your arguments should be well-thought-out, well-written, and supported by authorities (usually other cases). Use quotations sparingly. Give proper citations to the sources of all authorities.

• Conclusion

 

 
 
 

This is usually a single sentence, which clearly states what outcome you desire. For example, "For the foregoing reasons, the opinion of the Court of Appeals should be overruled, and a new trial ordered." Below this, write "Repectfully submitted,". Then you and your co-counsel should sign the document.

7. Revise, rewrite, and proofread your brief

Very few people write a perfect brief on their first try. Don't be afraid to make changes. Revise several times, if necessary. It's often helpful to ask a friend or classmate to read and critique your brief; other people will often notice problems that the author has overlooked. Check your brief for grammatical and spelling errors (and beware!: spellcheckers won't catch all mispellings). Nothing makes a worse impression than these kinds of mistakes.

When you're satisfied with your brief, double-check that all your case citations are current.

8. Go out with your friends and celebrate the completion of your brief!

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Copyright by Phyllis B. Gerstenfeld