§ 4:6.3 principles of appellate litigation

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§ 4:6.3 Principles of Appellate Litigation

§ 4:6.3 Raising New IssuesA reply brief may not raise new arguments that were not made in

the opening brief.65 It is certainly permissible to cite additional cases and to expand on previously stated points, however. It is also appro-priate to reply to any arguments made by the appellee, even if the reply gets into new territory. To give a simple example, in an appeal about a contract dispute, if the appellee argues that the appellant waived a challenge to the jury instructions, the appellant is entitled to reply that no waiver occurred, or that the appellee’s misconduct made the instructional error worse, even though those arguments did not appear in its opening brief.

§ 4:7 Strategies for Effective Legal WritingThere are many excellent books on effective legal writing, as well

as regular columns in legal periodicals. All of them contain valuable insights and guidance on the techniques of written advocacy. What follows here are suggestions, mostly but not exclusively tailored to appellate writing. They are by no means exhaustive.

At the outset, three overarching points about legal writing should be noted. First, as many experts have taught, good legal writing above all means good writing. While legal subjects are often technical and dry, that is not an excuse for the poor quality of much written advo-cacy. After all, most people have had the experience of reading an arti-cle on an esoteric subject, scientific or academic, and been surprised that it was not only informative but even enjoyable to read. The same qualities that make an essay in the Atlantic lively and persuasive work for a legal brief as well.

Second, legal writing is a skill that can be learned like any other. There are very few born brief writers. The rest of us acquire our tools through practice and imitation. Over time, you will acquire a reper-toire of techniques for making and responding to different kinds of arguments. When you read a particularly well- executed brief, make a mental note of what worked and then try to apply those lessons to your next writing project.

Last, as any novelist will attest, good writing means rewriting. Especially when it comes to legal advocacy, a first draft will never be as strong as the second, let alone the tenth. Of course, lawyers are busy and their time is expensive. But setting aside the time to revise will well repay the investment by producing a brief that is clearer, stronger, and more persuasive.

65. See, e.g., Novosteel SA v. U.S. Bethlehem Steel Corp., 284 F.3d 1261 (Fed. Cir. 2002); Carter v. Lee, 283 F.3d 240 (4th Cir. 2002); Fenster v. Tepfer & Spitz, Ltd., 301 F.3d 851 (7th Cir. 2002).

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Writing the Brief § 4:7.1

§ 4:7.1 ClarityThe sine qua non of a brief is clarity. Many briefs unfortunately

contain lengthy passages—or even whole argument points—where the reader cannot understand what the author is trying to say. That is a failure of advocacy, above all. A brief that is incomprehensible perforce cannot persuade anyone, no matter how insightful or author-itative its arguments.

As the cognitive scientist Steven Pinker writes, one of the main causes of bad writing—not just bad legal writing—is the “Curse of Knowledge.”66 The curse takes hold when the writer forgets that the reader does not know everything the writer knows. As a result, the writer assumes background that the reader does not have; fails to take the time to explain relevant concepts or history; and drafts prose that the reader cannot follow. So it is with many briefs. Even the most tal-ented, experienced judges are not versed in every area of law, and they certainly do not know the facts of every case. In most courts, they are generalists, not specialists. It is the brief writer’s task to prepare the law and the facts and then serve them in an easily digestible form. The brief writer must imagine the reader following her through the brief, and occasionally cast a backward glance to make sure the reader has not gotten lost.

It is useful to think about clarity as a goal to pursue at every level of the brief, from vocabulary to structure. Here are a few tips.

Terminology. Avoid scientific, industry, and legal jargon as much as possible. Where unfamiliar terms and concepts are necessary, explain what they mean. Eschew acronyms unless they are well- known. While it is safe to assume the reader knows what NASA and GDP stand for, one must define lesser- known terms, such as EBIDTA (Earnings Before Interest, Taxes, Depreciation, and Amortization), FIFRA (Federal Insecticide, Fungicide, and Rodenticide Act), and FWW (Fluctuating Work Week).

At the same time, do not clutter the brief with unnecessary defi-nitions. If there is only one person named Smith in the case, there is no need to write John Smith (“Smith”). You can just refer to him as “Smith” after the first reference. If there is only one Board in the case, there is no need to write the National Labor Relations Board (the “Board”). Just call it “the Board” after the first reference.67 Similarly, refer to the parties, key characters, or key documents using a single,

66. SteVen pinkeR, the SenSe oF Style 57–76 (2014). 67. The instinct to define every term makes sense in contract drafting, where

precision is more important than readability. Hence, a contract may say “In consideration for a payment of $100 (one hundred dollars),” or “Plaintiff ’s motion was due thirty (30) days later,” but a brief should not.

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consistent name. For example, refer to the plaintiff consistently as “Smith”, not sometimes as “Smith” and other times as “Plaintiff” or “the Managing Partner.” If possible, avoid referring to the parties using generic terms like “appellant” and “appellee” and instead use their names. It will help the court keep the parties straight.

Paragraphs. Paragraphs are the building blocks of prose. There should be a logical flow from one sentence to the next within a single paragraph, and then from one paragraph to the next. Before intro-ducing a new idea, consider whether you have provided enough back-ground for the reader to understand your point. If you are trying to show that the plaintiff proved his case, you must first lay out the elements of the causes of action. If you are trying to show that the plaintiff’s firing was unlawful, you must first explain the nature of his job, the protected classes to which he belonged, and the reasons offered for his termination, before you can explain how the termina-tion violated his rights.

Every paragraph should have a topic sentence at the beginning that announces the main point. As they say in the newspaper business, do not bury the lede. Unlike academic writing, which often puts con-clusions at the ends of paragraphs, persuasive writing begins with the conclusions and then provides the support for them. That way, if the reader ever gets lost, the next passage will set him back on the right course. Each paragraph should contain a single idea. When you intro-duce a new idea, start a new paragraph. In general, shorter paragraphs are easier for the reader to digest. Except in rare cases, a single para-graph should never be more than a page long.

The Brief As a Whole. Larger segments of a brief should follow an intuitive order. In most cases, the fact section should be chronologi-cal; argument points should proceed logically, establishing major legal premises first and then applying them to minor premises or particu-lar fact patterns. Provide signposts along the way in the form of head-ings and subheadings so the reader knows at all times what point you are trying to make and how it fits into the overall structure. Frequent headings also break up the monotony of the page.

§ 4:7.2 SimplicityAnother leading cause of bad writing—particularly legal writing—

is the lawyerly penchant for needless complexity. Many brief writers believe, consciously or unconsciously, that legal writing must be dry, tedious, and brimming with qualifiers and conditions. In fact, the opposite is true. The most persuasive writing is usually the most sim-ple and direct. Clear writing grabs the reader’s lapels and does not let go until it has made its point.

The problem with needless complexity is that it sends miscues to the reader. A sentence in the procedural history section that begins

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with the date a motion was filed, or a summary of the facts of an unrelated case cited for a legal principle, makes the reader think that those details must be important. At best, the reader experiences a momentary puzzlement and moves on; at worst, he loses the thread of the argument and skips ahead to find it again. Either way, the unnecessary details blunt the force of the brief.

To say that a brief should be simple does not mean it should be simplistic. The goal is to make your writing as simple as possible, but no simpler. There are times when you must use jargon—indeed, there are times when it would be less clear not to use jargon. (For example, terms like justiciability, collateral estoppel, and consider-ation are valuable because they encapsulate complex legal ideas.) And, of course, many legal arguments are intricate and subtle. But, in gen-eral, it is better to break down complex ideas into simpler pieces and endeavor to express them in fewer words. Here are some applications of the principle of simplicity:

• Short sentences are usually stronger than long ones. That is true even when the ideas are complex. And a series of staccato sentences building on each other can be especially powerful. Conversely, sentences with multiple qualifiers and dependent clauses, which send the reader down side paths, often weaken the overall argument.

• Many writers are reluctant to use pronouns when a noun is repeated throughout a paragraph. They may think they are avoiding ambiguity, or that it sounds more authoritative to use the same words over and over. But in fact, repetition makes the writing more ponderous and the argument less comprehensible.

For example, instead of writing this:

The National Labor Relations Board makes no effort to explain its recent about- face on the exis-tence of a right to make recordings in the workplace. The National Labor Relations Board now relies on a series of cases interpret-ing Section 7 that it previously criticized. Those cases interpret-ing Section 7 do not support the National Labor Relations Board’s theory in any event.

Write this:

The Board makes no effort to explain its recent about- face on the existence of a right to make recordings in the workplace. It now relies on a series of cases interpreting § 7 that it previously criticized. Those cases do not sup-port its theory in any event.1s

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• Similarly, there is no need for an entire phrase when a short-hand word or two will do. Once you have mentioned the motion for summary judgment, you need not repeat that entire phrase every time. Just write the motion. Certainly do not use the entire formal name of the motion, such as the Motion for Summary Judgment on Liability for Breach.

A side benefit of simplicity is that it makes abiding by word limits easier. With only 13,000 or 14,000 words for an opening brief, and half that number for a reply brief, even a modest tightening of your prose is helpful.

§ 4:7.3 Pacing and “Density”Another key quality of a strong appellate brief is the efficient and

strategic use of space. Avoid the clutter and surplusage that one often finds in weaker briefs. Shun boilerplate paragraphs—such as those that dutifully introduce the names of all the characters in the case—especially at the beginning of the Preliminary Statement and the Argument section, where the reader’s attention will be most focused. Make your strongest arguments first and express them in as direct and concentrated a form as possible, without tangents or asides.

There is a tendency among some writers to try to pack their entire case into every paragraph or even every sentence. Avoid it. For example:

• Do not begin new points with superfluous references to previ-ous ones.

In addition to the plaintiff ’s lack of standing because he has not been injured by the defendant, this action is also not ripe because . . .

• Do not make too many points simultaneously.

Even if the trial court had properly analyzed whether this list of evidence constituted common evidence in the course of denying the motion for decertification—which it did not, since the plaintiffs never proffered it as such—none of it constitutes evidence of class- wide misclassification.

• Do not finish every argument point with a pat recitation of the relief you seek.

. . . Therefore, the Court should affirm the district court’s holding that the plaintiffs are time- barred.

This tendency shows a lack of confidence in the reader to follow the argument being made, or perhaps in the persuasiveness of the

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argument itself. Each argument point should be self- contained and self- sufficient. It is fine to cross- reference a previous or subsequent point, but not at the risk of overshadowing the main contention you are making in any given spot.

§ 4:7.4 ToneStriking the proper tone in legal advocacy is always a balancing

act. It is important to convey the force and urgency of an argument, but one must be respectful. When one is attacking an adversary’s position, it is proper to call it unpersuasive, meritless, wrong, flawed, baseless, erroneous, unsustainable, misinformed, misguided, mis-taken, or even nonsensical or frivolous, if warranted. It is not proper to call it laughable or dishonest. Of course, one should never engage in ad hominem attacks on opposing counsel.

What goes for an adversary goes doubly for the lower- court judge. It is proper to criticize the judge’s rulings and point out flaws in their reasoning, but one must do so respectfully and without rancor. Remember that the appellate judges who will be deciding your case have a much longer relationship with the trial judge than with you. And they will certainly feel more affinity for that judge than for your client. It goes without saying that you should never level a personal attack on the judge or accuse him or her of bias, unless you have unassailable evidence to support your position—and even then it is a dangerous strategy that may well backfire. To avoid even the appear-ance of a personal attack, some advocates refer to the lower court exclusively as the court below or the trial judge, never as Judge Smith.

§ 4:7.5 Informality, Slang, and HumorGood writing should never be stiff or stilted. One must be care-

ful, though, not to tilt too far in the opposite direction. The use of informality, slang, or humor is rarely effective, and it may put off some judges. Indeed, this author goes so far as to avoid using con-tractions, as they create a somewhat colloquial air, although many lawyers employ them. A good turn of phrase or clever wording will be appreciated, as long as you do not cross the line.

§ 4:7.6 Using Quotations EffectivelyBecause advocates always look to ground their arguments in author-

ity, they have a natural inclination to quote sources. Unfortunately, it leads some to think that the more quotations they include, the stronger their argument. As the late Justice Antonin Scalia and Brian Garner pointed out, the opposite is true. As they wrote, “it will be your reasoning that interests the court, and this is almost always more clearly and forcefully expressed in your own words than in the

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stringing together of quotations from various cases. Such a cut- and- paste approach also produces an air of artificiality, even of lack of self- assurance.”68

One trouble with quotations is that the injection of someone else’s words almost always interrupts the flow of your prose. Subtle changes in tone or verbiage, as well as the loss of the quotation’s original con-text, make it harder for the reader to follow the point. Block quotes are even worse because their visual format—single- spaced, set off by themselves—almost encourages the reader to skip them altogether. The mental effort it takes to read a quotation, understand its point, and relate it back to the subject matter at hand is often more of a bur-den than you want to impose on the reader. Accordingly, block quotes should be limited to a maximum of one per brief. For comprehensibil-ity, it helps to precede the quote with an explanation of what it says and to follow it with a summary of the point.

There are a few situations where quotations can be highly effective:

• When a quotation is particularly pithy or expressive, or the fact that a particular person (judge, expert, opponent, or other) said it is significant.

“The assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227 (1974).

In assessing whether a law violates the Establishment Clause, courts may consider “readily discoverable” facts, “without any judicial psychoanalysis of a drafter’s heart of hearts.” McCreary Cty. v. ACLU, 545 U.S. 844, 862 (2005).

“It is tempting to think that courts are engaged in judicial review of arbitration awards under the Federal Arbitration Act, but they are not. . . . That is why in the typical arbitration, . . . the issue for the court is not whether the contract interpretation is incorrect or even wacky but whether the arbitrators had failed to interpret the contract at all, for only then were they exceeding the authority granted to them by the contract’s arbitration clause.” Wise v. Wachovia Sec., LLC, 450 F.3d 265, 269 (7th Cir. 2006) (Posner, J.) (citations omitted).

• When one is attacking the other side, to use their own words against them.

68. SCAliA & GARneR, supra note 14, at 128.

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Plaintiffs concede that their witnesses testified about their own experiences alone, not the job duties per-formed by other class members. They argue, however, that “the distinction between individual and common evidence is a false dichotomy.” (Opp. Br. at 14.) That is an astonishing and telling statement.

• When one is quoting the governing standard or law. For exam-ple, if an appeal is about Title VII or the summary- judgment standard, it is essential to quote the language of the Civil Rights Act of 1964 or Federal Rule of Civil Procedure 56.

• When one is quoting from evidence in the record, such as tes-timony or documents.

If a situation does not fall within one of these categories, it is usually more effective to paraphrase the point in your own words rather than quote an authority. Indeed, certain points are never worth quoting—such as standards of review or the elements of causes of action—at least where those principles are not at issue.

Where you do quote, choose the least number of words to put inside the quotation marks. Sentences that incorporate short quotes are more potent than unedited long quotes. For example, if the ques-tion is what it means to “discriminate on the basis of sex” or what a “genuine issue of material fact” is, you need not quote the entire language of Title VII or Rule 56.

Try to avoid interpolations that mar the appearance of a quotation with brackets or ellipses. It is almost always better to rewrite the sen-tence containing the quote than the quote itself. For example—

Instead of writing:

The suit was ripe because when it was brought “all that [was] con-tingent and uncertain [was] the possibility that the dispute . . . may become moot.”

Write:

The suit was ripe when it was brought because the only thing “contingent and uncertain” was that the dispute “may become moot.”

Finally, be extremely careful when quoting sources that the excerpt is fair and complete. Few things are as devastating to an advocate’s argument and credibility as when the other side can argue that she selectively quoted or even misquoted a source. The reverse is true as well. If one’s adversary, or the lower court, misquotes a precedent or some evidentiary material (e.g., the contract or the pleadings), it can be extremely effective to point it out. Unforced errors of that sort can win the case, or at least put the other side on the defensive.

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§ 4:7.7 Using Emphasis EffectivelyMany brief writers are addicted to emphasis. In oral argument,

one can convey which points are important by raising one’s voice or changing one’s verbal gait. In writing, those options do not exist. Thus, some writers use a mishmash of typographic techniques to indicate emphasis—italics, boldface, underlining, or even capital let-ters—sometimes combining two or more types in the same sentence. The result is a visually confusing page that makes it more difficult for the reader to know what the author intended to highlight.

As a general rule, choose one form of emphasis and stick with it. Unless the brief is typewritten, as few are these days, use italics exclusively (except for headings and the like). Some writers claim that italic text is too faint to read, especially if the original has been pho-tocopied many times, and therefore prefer to use boldface with italics. While that technique is less off- putting than others, in this author’s experience, plain italics are sufficient. When italicizing, choose the smallest number of words to indicate emphasis. Often, one needs to italicize only a single word in a paragraph to get the meaning across.

Besides visual tools, sentence structure and word choice are also effective ways to convey emphasis. Terse sentences can be highly emphatic. And many teachers of legal writing note that the most emphatic part of a sentence is the end.

Some writers disdain the use of “empty” adjectives and adverbs to convey emphasis—words like clearly, plainly, completely, certainly, very, absolutely, and so on. While it is true that those words and their kin should not be overused, and that sometimes (ironically) they sig-nal the weakness of an argument rather than its strength, this author believes that in moderation, their use is appropriate. For example, it is fair to describe an argument not just as wrong but plainly wrong where a controlling case expressly rejects it or statutory language fore-closes it.

§ 4:7.8 Using Footnotes EffectivelyFootnotes are another brief- writing technique that arouses pas-

sionate disagreement. Some writers welcome footnotes for a variety of uses, including substantive points in a legal argument. Others tol-erate footnotes, but only to contain legal citations (and some believe that citations should appear only in footnotes). A few authorities shun footnotes altogether, justifying their position with the slogan that if a point is important, it should appear in the text, and if not, it should not appear at all.

This author recommends a middle ground. Footnotes, used in mod-eration, are a time- honored and valuable device. The challenge is to know when they illuminate and when they merely distract. In broad

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strokes, a 14,000- word brief should rarely feature more than twenty footnotes, and usually no more than ten. Footnotes should never be used to make an independent substantive argument, as many courts hold that footnotes do not preserve arguments.69 Moreover, if a point is important to one’s position, one should not relegate it to the bottom of the page. Some inexperienced brief writers, reluctant to attack an adversary directly, store their heaviest artillery in footnotes. That is a wasted opportunity. A strong point should be placed where it has the most power to advance a strategic position.

Footnotes can be useful in a few situations:

• When you want to include a long string cite (say, from multi-ple states or circuits) that will take up too much space in the text.

• When additional technical material or background, while not strictly necessary, may help the reader understand a point in greater depth.

• When you want to rebut subsidiary arguments or additional cases for the sake of completeness. If the arguments or cases are important to the other side, however, they should be addressed in the text.

At the end of the brief- writing process, it is a good practice to examine every footnote and consider whether to (a) leave it where it is; (b) elevate it to the text; or (c) delete it.

§ 4:7.9 Using Citations EffectivelyWhile appellate briefs are typically chock- full of citations, they are

often not used effectively. The simplest, cleanest way to corroborate a point of law is to state the proposition and then cite the supporting case or authority immediately afterward. Compare the straightfor-ward approach in the right column with the more roundabout ones in the left column:

69. See, e.g., Fox v. Costco Wholsesale Corp., 918 F.3d 65, 76 (2d Cir. 2019); NSTAR Elec. & Gas Corp. v. FERC, 481 F.3d 794, 800 (D.C. Cir. 2007).

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1. In Rubenstein v. Small, 75 N.Y.S.2d 483 (N.Y. App. Div. 1947), the court held that a con-tract is not a “true loan” if the principal is placed in hazard.

2. The court held in Rubenstein v. Small that a contract is not a “true loan” if the principal is placed in hazard. 75 N.Y.S.2d 483 (N.Y. App. Div. 1947).

3. Under New York law, a contract is not a “true loan” if the principal is placed in hazard. Rubenstein v. Small, 75 N.Y.S.2d 483 (N.Y. App. Div. 1947) (describing a contract where the principal is at hazard as not a true loan).

4. Courts hold that a contract is not a “true loan” if the principal is placed in hazard. See, e.g., Rubenstein v. Small, 75 N.Y.S.2d 483 (N.Y. App. Div. 1947).

A contract is not a “true loan” if the principal is placed in hazard. Rubenstein v. Small, 75 N.Y.S.2d 483 (N.Y. App. Div. 1947).

Each of the variations on the left suffers from a different weakness. Version 1 needlessly foregrounds the name of the case. If the entire appeal focuses on Rubenstein, then that might be appropriate, but otherwise it sends a signal to the reader to expect more discussion about Rubenstein, which becomes confusing when it does not hap-pen. Version 2 also foregrounds the case name but then splits off the reporter information, to no particular advantage. Version 3 puts the case citation after the proposition of law but then adds a parenthetical that unnecessarily restates the previous sentence. You do not need a parenthetical after every case citation, especially when the parenthet-ical says nothing new. Finally, Version 4 is the closest to the model in the right column, but it dilutes the proposition of law by characteriz-ing it as what “courts hold.”

Brief writers sometimes let the citation apparatus overwhelm the argument in other ways. It is not mandatory to include a “quoting” or “citing” reference when the second case is close in time to the first and has the same precedential force. Doing so just makes the cita-tions take up more room on the page without adding much authority. Thus—

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Instead of writing:

Smith v. Jones, 950 F.3d 200, 201 (2d Cir. 2020) (citing Doe v. James, 900 F.3d 100, 101 (2d Cir. 2019)).

Write:

Smith v. Jones, 950 F.3d 200, 201 (2d Cir. 2020) (citation omitted).

Or:

Doe v. James, 900 F.3d 100, 101 (2d Cir. 2019).

The same is true with quotations—it may be just as powerful to cite either the quoting case or the quoted case, not both.

String cites have a place in brief writing, but they also should not be overused. For a proposition of law that is central to an argument, it makes sense to cite a series of cases, especially when the point is to show a long, unbroken chain of authority. In that situation, one should skip the parentheticals, or even put some of the cases in a foot-note, to keep the string cite from becoming too long. But for uncon-troversial propositions, like the elements of a cause of action or the requirements for a particular motion, only one case is needed.

Finally, there is no need to propose a short- form name for a case when that form would be obvious. Thus, do not write: Smith v. Jones, 850 F.3d 126 (8th Cir. 2014) (“Smith”). The exception is where there is more than one case named Smith, in which case you should label them Smith I, Smith II, and so on—or where the short- form name you intend to use is not obvious from the case name.70

§ 4:7.10 Miscellaneous Pet PeevesEvery writer and reader has an idiosyncratic list of words and

phrases whose sighting in a brief causes them to wince slightly. Here are a few of this author’s

• Compound legalistic words: aforementioned, hereto, thereto, hereinunder

• Words and conventions drawn from contracts:

and/or [because it almost always just means or]

including but not limited to [because including means the same thing]

inter alia, among other things, in pertinent part [unnecessary because it is obvious that statutes and contracts have multiple parts]

70. See BlueBook, supra note 3, R10 at 102.

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§ 4:8 Principles of Appellate Litigation

ten (10) days later, five dollars ($5) [no need to use both num-bers and numerals]

• Unnecessary cross- references: As argued below or as argued above

• Other verbal tics:

Where, as here

The other side concedes, as it must

The doctor(s) breached the contract [choose singular or plural, not both]

The employer/manager issued new rules [choose one word or the other, no slashes]

§ 4:8 The Visual AspectWhile it may seem counterintuitive to focus on how a brief looks,

every trial lawyer knows that visual presentation matters almost as much as content in persuading an audience. Appellate work is the same, even if the audience consists exclusively of judges and the medium is a written brief. A brief that looks polished will reinforce your credibility and your arguments, while one that looks sloppy will do the opposite. This section covers a few key methods for producing professional- looking legal documents.71

§ 4:8.1 Spelling, Grammar, and BluebookingNothing hurts a brief’s credibility as quickly as spelling errors.

Fairly or unfairly, spelling errors create an impression of carelessness that cannot help but spill over to the legal arguments as well. It goes without saying that every document you submit should be spell- checked. But running a spell- checking program alone is not enough because it will fail to catch misspelled words that happen to be other words, such as its and it’s; there, they’re, and their (called homonyms); and even unrelated but similarly spelled pairs like not and hot. If you tend to miss these errors when you proofread your own work, ask someone else to proofread it for you.72

71. The expert on this topic is Matthew Butterick, a typographer and prac-ticing lawyer. His book typoGRAphy FoR lAwyeRS (2d ed. 2015) cov-ers all aspects of visual style. It contains a wealth of advice for creating professional- looking legal documents, especially briefs.

72. Another tip is to change the font and point size and review it again. Those subtle differences make the text seem new to one’s eyes.

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§ 4:6.3 principles of appellate litigation

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