Why Aren’t Briefs Actually Brief?

By Karen Federman-Henry

Fairly often, as I prepare an appellate brief, my husband will offer to write it for me. As he is a retired assistant fire chief, this always intrigues me, so I’ll ask him how he would take all the complex issues I have to address and present them to the court. His reply typically tells me the simplest (and shortest) brief would say, “I’m right and they’re wrong.”

Obviously, I have not used this technique, but it helps to keep this concept in mind when writing a brief. At the most basic level, isn’t that what each of us is trying to say in our briefs? Whether we have 35 pages or 50 pages available to us, it all really boils down to an effort to persuade the appellate court to accept and adopt the position we present on behalf of our client.

From this perspective, it seems to me that brevity might be more persuasive than using all of the pages allocated. Knowing how many briefs judges need to read and evaluate, if I can give them all the analysis they need in 20 to 25 pages, surely they would appreciate the reduced time and eyestrain. I know — right about now you are muttering that more is better and why not use all the space allowed? And I admit that some cases require 35 to 50 pages of writing, but that should be true only when the issues are so voluminous or complex that additional discussion becomes absolutely necessary. Many cases do not merit lengthy briefs.

So how do we adequately represent our clients while reducing the text of our briefs? I have a few ideas that have helped me tighten my arguments through the years without undermining my client’s cause. I have reduced them to five quick tips — see if they work for you.

Tell a story with your statement of facts. The appellate brief is not a complaint, so listing all of the facts found in depositions, answers to interrogatories, and exhibits does not help the court understand the context of your case. By condensing the facts into a story at the outset, the court can prepare for your legal arguments. You will include references to the extract in your legal analysis, so that is the better place to show the court how the record supports your client’s position.

Reduce the amount and length of quoted material. Many times, quoted material is the product of not taking time to synthesize the information and to describe it using your own words. Admittedly, there are times when quoted language cannot be improved upon, but those instances are rare. If you really need to quote language from the record, a case, or a statute, tell the reader what he or she should glean from the quoted material. Do not simply write “the Court said” without giving some hint as to why it is important to read the quote. Helping the reader understand why you are including the quote strengthens the logic of your argument.

Limit case summaries. As with quoted material, it is easy to summarize several cases and then jump to the conclusion that you win. This “voila!” method may suffice sometimes, but I would suggest that tying the points gleaned from those cases to the case the judges actually need to decide might persuade them a bit more easily. This means that you must digest the cases so that you identify only the key facts and legal principles that you will need for the persuasive portion of your brief.

Avoid footnotes. We all know that footnotes provide a comfortable home for tangential information. When used properly, they allow for inclusion of a point or a citation that expands the discussion but does not need to appear in the primary text of the brief. Too frequently, however, footnotes house key citations and significant points of an argument that should appear in the main discussion — not hidden in a footnote. This poses a problem, because some judges may not read the footnotes and those who do may find it distracting to keep leaving the text to look at them. Either way, your argument may be weakened. To overcome this danger, it helps to review all footnotes to see whether the information fits somewhere in the text. I usually find that what seemed appropriate for a footnote when I prepared the first draft of a brief supports an argument with minimal editing in the next version. Moving footnote material into the main discussion can strengthen the logic of the argument while reducing the risk that a key point might be overlooked.

Use syllogistic logic. Instead of filling all those pages with quotes and case summaries, try the most basic form of persuasion — the syllogism. For those who did not major in philosophy, that is the approach in which two (or more) main premises lead to one conclusion. Using this formula, it becomes simpler to identify the key facts in your case (the premises) that will lead to one conclusion (that you win based on the legal principles that apply to your case). This is the essence of appellate practice and need not be lengthy. In fact, this approach provides a useful organizational structure for a brief.

Using these techniques, I have reduced colleagues’ drafts from as much as 100 pages down to the 35 or 50 pages allotted (depending on the court). The extra pages may come from repetition of points or lengthy quotes that, once reduced and condensed, lead to a more persuasive argument. If you still have doubts, check out this ABA news story from a few years ago describing a situation in which an appellate court ordered an attorney to submit a five-page argument in a crucial case. The attorney met the challenge by using a comic-book-style cartoon to make all of his key points. If a cartoon can capture the required facts and legal concepts, then certainly we should be able to do so within the page limits established by appellate court rules. Maybe with more practice, we can make appellate briefs truly brief!