WASHINGTON STATE COURT OF APPEALS, DIVISION I
BRIEF WRITING -- BEST PRACTICES
BE BRIEF. There is no correlation between length and likelihood of success. Typically, the shorter briefs that get right to the point are better organized and more likely to inspire careful reading.
- USE YOUR TABLE OF CONTENTS AS AN OUTLINE OF THE ARGUMENT. The court should be able to read this outline to understand what the case is about and to see how you want us to decide each issue that is being raised.
- DISCUSS FACTS AND PROCEDURE IN CONNECTION WITH EACH ISSUE. We have noticed a trend toward briefs that begin with a summary of "procedural facts" followed by a lengthy statement of "substantive facts". This formulaic approach is not required by RAP 10.3(a)(4), which merely says that a brief should include a "fair statement of the facts and procedure relevant to the issues presented for review." Often it is preferable to begin with an overview summarizing the proceeding below and explaining each party's theory of the case. The statement of facts and procedure relevant to an issue can then be set forth just before the argument pertaining to that issue. This court generally does not like to be introduced to the case through a recitation of the trial testimony.
- EXPLAIN WHY THE TRIAL COURT RULED AS IT DID. When challenging a trial court ruling it is best to acknowledge the trial court's reasons for ruling that way. When we read an appellant's presentation that seems one-sided, our tendency is to put that brief down and move quickly to the respondent's brief in hopes of getting a clearer picture of what happened below.
- BE SPECIFIC ABOUT RELIEF. Both sides should tell us what they think ought to happen next if we decide to reverse on one or more issues. Will a remand be necessary? Will further fact-finding be necessary? Will the trial court need specific instructions?
- DESCRIBE THE KEY CASES. When you rely on a case, do not just state the holding; briefly describe the case in an accurate and fair manner.
- TONE IS IMPORTANT. Acid comments diminish whatever rational power your argument has.
- EDIT. Feel free to throw away your first drafts. If you have not learned to rewrite, work with an editor. Take a writing course. Read books about good writing. We particularly recommend Strunk and White, Bryan Garner, and William Zinsser.
- STAY WELL UNDER THE PAGE LIMIT. Do not use footnotes and other devices to squeeze more words onto each page. The resulting print is hard to read, and it is doubly annoying when we realize the writer is trying to evade the 50-page limitation. If you really want the court to read something, don’t put it in a footnote.
- MISCELLANEOUS ADVICE.
- Don't put names of people in capital letters.
- Don't use roman numerals to number the counts in your complaint or for any other reason.
- Avoid "creative" ways of referring to the record; generally RP___ and CP ___ work well.
- Include some type of short summary or introduction. It's very annoying to be 10 pages into a brief and find oneself saying, "What is this case about?"
- Avoid referring to the parties as plaintiff/defendant or appellant/respondent. Use parties' names.
- Do not ignore an issue or argument raised by the opponent. If it's meritless, just tell us why in few words.
- Do not ignore pertinent case law!!!
- Do not set out boilerplate law that is not directly relevant to the issues on appeal.
- Be sure your citations to the record are accurate and not misleading. For example, in a criminal case, when discussing the sufficiency of the evidence, do not cite to testimony elicited during a pretrial suppression hearing. Similarly, when discussing a suppression issue, do not cite to testimony elicited at trial. If there is a distinction worth noting, say so, but don't simply cite to the record as if it supports your argument.
- Designate exhibits that will be helpful to the court in resolving an issue. For example, if the drawing used by a witness and admitted as an exhibit is the clearest way to show the layout of a house, designate the drawing.
- Make assignments of error as specific as possible (without including too much argument). For example,
Common: "The trial court erred in granting summary judgment."
Better: "The trial court erred in granting summary judgment dismissing Smith's complaint for breach of contract."
Better yet: "The trial court erred in granting summary judgment dismissing Mary's complaint for breach of contract as barred by the statute of limitations."
- It is helpful to include statements such as "This case involves an issue of first impression: . . ." (assuming, of course, that it's true!)
- It is sometimes helpful to include a footnote describing the length of the pertinent record, particularly if the record is very long, or if the record is very long but only a small part of the record is pertinent.
- In summary judgment cases, cite to the places in the record where the disputed facts are arguably established or contradicted. Do not cite to the place in the record where trial counsel argued that certain facts were established or contradicted. In other words, cite to the affidavit or declaration, not the memorandum supporting or opposing the motion.
- Indicate in the brief if you know of other cases currently pending that raise the same issue, if review is pending in a case you have relied on or distinguished, or if there is a related case, such as a case involving the same facts but involving different parties.
- Case citations in italics are difficult to read after a while. Case citations underlined or in bold are easier to spot.
Following are excerpts from the Honorable Patricia M. Wald, Judge, United States Court of Appeals for the D.C. Circuit, "19 Tips from 19 Years on the Appellate Bench," The Journal of Appellate Practice and Process Vol. 1, No. 1 (Winter 1999).
---"In my 19 years on the court we have by judicial fiat first shortened main briefs from 70 to 50 pages, then put a limit of 12,500 on the number of words that can go in the brief, and in complex, multi-party cases our staff counsel threaten and plead (we get into the act ourselves sometimes) with co-counsel to file joint or at least nonrepetitive briefs. It's my view we can, should and will do more to stem the paper tidal wave. Repetition, extraneous facts, over-long arguments (by the 20th page, we are muttering to ourselves, ‘I get it, I get it. No more for God's sake') still occur more often than capable counsel should tolerate. In our court counsel get extra points for briefs they bring in under the 50-page limit. Many judges look first to see how long a document is before reading a word. If it is long, they automatically read fast; if short, they read slower. Figure out yourself which is better for your case . . .
---"Confident counsel should almost always go for broke and rely on their one or two best arguments, abandoning the other 9-10 wish-list entries. There is, of course, always some small risk of dropping an argument that might appeal to one or two judges, but I can assure you in the vast majority of cases that possibility is theoretical only, and the fewer arguments you make the more attention they will get from us in preparing and disposing of your case. We tend to engage ourselves more intensely with a few strong issues than with a strung-out list of 10 reasons why the decision below needs to be reversed. Judges become euphoric on encountering a brief that begins, ‘The only issue in this case is . . .' On the other hand, with the top 10-type brief, the presumption in favor of the decision below kicks in when you reach Nos. 3 or 4 and with each succeeding argument, you have a higher psychological threshold to surmount. . .
---"Think hard before writing what the "Issue" is...Avoid abstractions; make it a concrete, easily understood question to which the answer is inevitable after you read the upcoming "Fact" section...Use neutral words; don't mix it up with argument or rhetoric; be especially fair in stating the real issue."
---"Visualize the whole before you begin...Better still...visualize the way the judge's opinion should read if it goes your way. (Too many briefs read as if the paralegal summed up all conceivably relevant facts, and then the lawyer took over with the legal arguments, and never the twain doth meet.)
---"Make the facts tell a story. The facts give the fix; spend time amassing them in a compelling way for your side but do not omit the ones that go the other way. Tackle these uncooperative facts and put them in perspective...Above all, be accurate on the record; a mistaken citation or an overbroad reading can destroy your credibility vis-a-vis the entire brief. Describe what happened low-key (‘Just the facts, ma'am') with no rhetorical or judgmental flourishes—well done, the facts should make your case by themselves. . . .
---"Don't engage in unanchored accusations or swipes at your opponent's work product; if you have a gripe, tie it to a specific mistake or miscite. Examples of ‘no-nos' taken from a recent brief include general allegations that the author's opponent ‘misstated issues and arguments raised by appellants,' ‘made selective and incomplete statements about the evidence,' ‘distorted the causation issue.' Judges' eyes glaze over as we read that kind of prose. . . .
---"You cannot imagine how disquieting it is to find several spelling or grammatical errors in an otherwise competent brief. It makes the judge go back to square one in evaluating the counsel. It says—worst of all—the author never bothered to read the whole thing through, but she expects us to."