Persuasive Strategies for Appellate Brief-Writing

Updated October 3, 2006
 

It's important to make the shift from stating the analysis objectively (putting yourself in the shoes of the decision-maker) to making an assertive argument. Similarly, attorneys too often get caught up in the defensive trap of merely responding to anticipated (or real) arguments of their opponents. Be sure to always state your own position and supporting argument before distinguishing or refuting your opponent's take on the issue. Headings and thesis sentences that use neutral or defensive wording do not convince the reader of the strength of your position. Compare these neutral/defensive statements against their assertive counterpars:

Neutral/Defensive: The first step of the Court's analysis will be to determine whether the defendants took reasonable precautions to prevent inadvertent disclosure.

Assertive: Defendants took reasonable precautions against inadvertent disclosure by identifying, labeling, and isolating the privileged material.

Neutral/Defensive: The court considers the number of disclosures when evaluating the privilege applied to a disclosed document. Many of the cases involve a small number of inadvertently disclosed documents out of thousands of documents reviewed. The small number of disclosed privileged documents does not excuse the disclosing party, however.

Assertive: Defendants waived the attorney/client privilege even though only one document was disclosed. The ratio of error is critical. Only where there is a small ratio between the number of documents reviewed and the number of inadvertent disclosures will a court find that screening procedures were inadequate. [citation] 

Neutral/Defensive: Counsel for the Plaintiff argues that Defendants allowed too much time to elapse before they notified him of the erroneous transmission. Defendants, however, notified the Plaintiff as soon as they discovered the misdirected fax.

Assertive: Defendants' prompt notice to Plaintiff on the very day they learned of the accidental transmission weighs in favor of granting the motion, as it was impossible for Defendants to correct an error they had not yet discovered.

State your assertion not only in the argumentative heading, but also incorporate it into the first sentence in the text beneath that heading (but don't delve deeper into the facts at this point). Go directly from this assertion into your supporting case law or statutes. Describe specific authorities in terms of the issue that you're addressing. Focus on case outcomes that will shape the court's decision in your favor. Compare these bland headings and rule statements with a more vigorous assertive version that makes a strong point about the position being argued.

Non-persuasive heading followed by rule statement:

Defendants' counsel allowed complete disclosure of the "King Memo."

Courts have found that when disclosure is complete, a court order cannot
restore confidentiality and, at best, can only attempt to restrain further
erosion. [citation]

Assertive heading followed by assertive thesis sentence, then rule statement:

Defendants' complete disclosure of the "King Memo" destroyed its status
as a privileged document.

Because the Yooler Law Firm now knows the full contents of the King Memo,
its confidentiality is irretrievably lost. In a case where the opponent learned the
"essence of the document's contents," the court ruled that its confidentiality
could not be restored. [citation]

Non-persuasive heading followed by rule statement:

Waiver of the attorney-client privilege failed to occur because the interests
of justice would best be served by not allowing opposing counsel to keep the
privileged document.

In determining the overriding interests of justice of inadvertent disclosure, the
Court should look at fairness issues involving both Plaintiff and Defendant as
well as the circumstance surrounding the disclosure. [citation] In [case name]
the court looked to whether a party had relied on an inadvertently produced
document. The court determined that since the party had not shown the
document to witnesses or experts that fairness issues were not in favor of
either party. [citation]

Assertive heading followed by assertive thesis sentence, then rule statement:

The overriding interests of justice weigh in favor of the protective order, as
waiver would give the Plaintiff an unfair advantage based on Defendants'
single mistake.

A protective order will assure Captain King that he can communicate with his
attorneys in confidence. Questions of waiver are never decided simply on the
basis of relevance and probative value. [citation] A court also weighs the policy
behind the privilege. "If that attorney-client privilege is to serve its purpose of
fostering attorney-client communication, then documents inadvertently produced
should not lose their privileged status without some substantial reason." [citation]

Whether you do it from fear, from caution, or from a misplaced sense of deference, it's a mistake to couch your arguments in terms of what you "would" or "could" argue, or of what something "seems" or "appears" to be. Such language undermines your credibility. Compare these examples of tentative language against a more assertive expression of the party's position:

Tentative language: Defendants would argue that the Gray balancing test is the approach favored by the Eighth Circuit.

Assertive language: The Gray balancing test is the approach favored by the Eighth Circuit.

Tentative language: In the case at hand, 1 document out of 8000 does not seem to be an extraordinary mistake, and definitely less than the mistake made in Lois.

Assertive language: The Lois court's reasoning--that inadvertently disclosing 22 documents out of 3000 reviewed was not waiver--applies with even greater force here, where Defendants accidentally transmitted only one privileged document out of 8000 reviewed.

"The appellee is defending the rightness of the judgment below. He or she has the benefit of rules that insulate that judgment from reversal unless--according to the issue--it was clearly, or harmfully, wrong. The appellee will, therefore, cast issues in terms of deference." Michael E. Tigar, Federal Appeals: Jurisdiction and Practice 352 (2d ed. 1993).

"In all but the exceptional case, the respondent sits in the driver's seat, enjoying the protective cloak of a practical (if not legal) presumption of correctness; the reviewing court does not want to reverse, and will bend over backwards to affirm the result below." Marshall Houts & Walter Rogosheske, Appeals 24.01 (Matthew Bender 1995).

When you represent the appellee, remember that "[i]t is your adversary and not you who has the burden of proving that the judgment should be disturbed." Ruggero J. Aldisert, Winning on Appeal 244 (NITA rev. ed. 1996).

Ordinarily the answer is "no." You'll make the appellate judges' job much more difficult if they have to go back and forth between the briefs to determine which parts of appellee's brief match which parts of appellant's brief. You should always be quite wary of choosing any course of action which makes the judge's job more difficult.

The answer is "yes" only when the appellant has deviated substantially from the logical and necessary order in which the issues must be analyzed. In such a situation, it is critically important that the appellee's issue statements are worded to indicate the appropriate order, and in your Summary of the Argument, it is equally important to explain why you've undertaken this reorganization.