Top Tips from Appellate Judges

By Tessa L. Dysart

Originally published in its complete form on the Appellate Advocacy Blog as a reflection on a presentation given at the First Annual Justice Donald L. Corbin Appellate Symposium in Little Rock, Arkansas.

My presentation was entitled “Top 10 Tips from Appellate Judges.”  As I noted at the start of the presentation, the irony of the topic was not lost on me.  Here I was, a law professor, giving tips from judges to a group of people who had heard from several distinguished appellate judges.  But, as I explained, my tips represented the views of the collective judiciary, culled from my work on the third edition of Winning on Appeal.  For the next several weeks, I am going to share a few of the tips from my presentation.

I started the presentation with the most important, most common, complaint about briefs that we received from judges–that they are just too long.  As one judge put it, “They’re called briefs, not longs.”

Why are overlong briefs so bad?  First, judges have a lot to read. The average federal appellate judge decides about 550 cases a year.  That means reading at least 1000 briefs a year.  If each brief is 50 pages long, that means that judges read at least 50,000 pages of  briefs each year.  Second, long briefs are hard to read in one sitting, which makes it hard for judges to compare arguments between briefs.  Third, judges have finite attention spans.  It is hard to remain excited about reading a long, unfocused brief.

So, how do you cut down your brief?  The judges who responded to our survey for Winning on Appeal had some great tips, two of which I will share here:

  1. “Think first, and edit ruthlessly.”  Think about what you need to prove to win, and orient your entire brief around that point (or points).  What is the “flashpoint of controversy” in the case.  If it is just about applying the law to the facts, don’t spend pages in your brief justifying the legal rule.  Just apply the established rule to your facts.
  2. Avoid needless repetition or extraneous facts.  Again, keep your brief focused on the dispute. Only include materially important facts when describing extraneous cases, and in your statement of facts, don’t go overboard on persuasive and background facts.

Writing a detailed outline before you start typing the argument is one way to keep your argument on track.

This post originally appeared on the Appellate Advocacy Blog, and the author obtained permission to repost it here.

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