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August 28, 2012

APPELLATE BRIEF WRITING

 

In writing an appellate brief, it is important to maintain focus. Identify the outcome you are seeking and do not waste time on items that do not advance that goal. Everything in the brief should be designed to persuade the court to rule in your favor. The brief should only include material facts, relevant law, and arguments supporting your parties' positions.

Fla. R. App. P. 9.210 outlines over 40 requirements for appellate briefs concerning content and format. Failure to follow these rules may result in the court striking the brief.

It is important to know what can be included in the appellate brief. Matters not presented to the trial court are not in the record and cannot be included. Carefully read exhibits, pleadings, and transcripts prior to preparing the appellate brief. Start preparing the brief by reviewing the record, conducting research, writing the argument, and checking the citations. Research is critical because legislative history may have a direct impact on the case at hand.

It is important that an appellate brief be organized. Florida appellate courts will not address issues not clearly set forth in a brief. This is true even when the record reflects the possibility of reversible error.

Issue selection and placement are essential. The maximum number of issues that should be raised in an appellate brief is three or four. A survey of Appellate Judges in Florida revealed three or four issues was the overwhelming number that the majority thought should be raised in an appellate brief.

Be accurate and present all material facts, even if they are adverse to your position. Facts may be presented in a light most favorable to your client, but they must be accurate. To that end, emotionalism rarely works in appellate courts. It is best to present a rational argument concerning your client's legal position.

Do not personally attack judges or opposing counsel. The lawyer has a duty of candor to the courts which also provides that counsel must disclose legal authority in the controlling jurisdiction, even cases directly adverse to your client, which opposing counsel fails to cite. Candor also involves accurately representing the holdings of cases.

It is best to avoid legal jargon, Latin, and pretentious words. Intricate descriptions and technical terms can be off-putting to judges. Brief writing is not about trying to impress someone; rather the purpose is to clearly and accurately present your arguments to the judge. If he cannot understand what you are saying quickly, it is likely that he will not take the time to understand your way of communicating. It is not advisable to use humor in brief writing.

Proofreading is imperative. Grammatical errors, incomplete sentences and misspellings are distracting and may result in loss of credibility with the courts.

Each issue should contain a legal standard of review, a conclusion at the beginning, an explanation that is clear and concise, the application of law, and another conclusion. It is important not to simply state the law and provide a restatement of facts without any application of the law. Conciseness is key and is important to judges who read thousands of pages of legal writing every year.


Jennings L. Hurt III
Managing Partner
Rissman, Barrett, Hurt,
Donahue & McLain, P.A.
201 E. Pine St.
15th Floor
P.O. Box 4940
Orlando, Florida 32802 - 4940
Off: 407 - 839 - 0120
Fax: 407 - 841 - 9726
Cell: 407 - 760 - 9000
Email: bucky.hurt@rissman.com
www.rissman.com

 

JLH/EMS/daf/tsr/keo

*This is a summary of an article that appeared in the September/October 2011 edition of The Florida Bar Journal.