Cameron Miranda
When preparing an appellate brief, it is essential to understand the specific requirements and best practices for effective presentation. While the structure and content of the brief are crucial, attaching case law is not explicitly mentioned as a requirement in the sources provided. However, discussing and analyzing case law within the brief is an important aspect of the appellate process. The focus should be on explaining the relevance and applicability of the cited cases to the specific issues under review. This includes providing concise statements of the case, relevant facts, procedural history, and the rulings presented for review, with appropriate references to the record.
| Characteristics | Values |
|---|---|
| Briefs | Must include a statement of the case, procedural history, statement of facts, summary of the argument, standard of review, and a concise conclusion. |
| Case Law | Should be analysed and explained in context. |
| Should not be "string cited". | |
| Should be recent, with old precedents used sparingly. | |
| References to Parties | Actual names or designations from the lower court should be used. |
| Typography | Appearance matters and can aid readability. |
| Supplemental Briefs | Allowed when using a petition for leave to appeal or an answer as the main brief. |
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What You'll Learn
Case law analysis
When discussing case law, it is essential to provide context. Explain the issue at hand in the case, the trial court's ruling, and the subsequent decision made by the appellate court. By doing so, you establish a framework for understanding the case's relevance to your argument. However, it is important to be selective and concise, choosing your best cases and grouping common themes together to present a coherent and persuasive argument.
Additionally, consider the outcome you seek in your case and prioritise citing cases with similar results. If such cases are unavailable, opt for those with language that can be effectively distinguished from the outcome. It is also worth noting that, while dicta may not be the ideal source, it can still be utilised to demonstrate why principled dicta should be followed to reach a favourable outcome for your client.
The standard of review is another pivotal aspect of case law analysis. Whether you won or lost in the lower court, it is imperative to structure your brief within the standard of review. This means objectively assessing the issues most likely to be decisive for a successful appeal. By adhering to this strategy, you can increase your chances of a positive outcome.
Lastly, while not specific to case law analysis, it is essential to pay attention to the brief's presentation. The appearance of your brief matters, and a polished and easily readable format can enhance the reader's experience. This includes adhering to typographical guidelines and ensuring your citations are up to date and relevant. By combining a well-structured argument with a visually appealing format, you increase the effectiveness of your appellate brief.
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Referencing and citations
The appearance of an appellate brief is important, as it can help the reader devote more attention to the message. A polished and easy-to-read brief is always preferable. When referencing and citing, it is important to follow the specific rules and requirements of the court in question. For example, in Illinois, briefs must follow Illinois Supreme Court Rule 6, and cases filed before July 1, 2011, that are published in the Illinois Official Reports should be cited.
When discussing case law, it is important to analyze it rather than simply listing cases or repeating opinions. Explain why the cases you cite are more relevant or applicable than those cited by your opponent or the lower court. Draw connections between cases and explain why the court should follow the reasoning of the cases you cite. It is also important to keep up with new briefing practices and proofreading techniques, such as the "cleaned up" signal in citations. Be wary of only citing old precedents, as this may not be effective in certain courts.
The brief should include a concise statement of the case, setting out the facts relevant to the issues under review, the procedural history, and the rulings presented for review, with appropriate references to the record. It should also include a summary of the argument, which must be a clear and accurate statement of the arguments made in the body of the brief. This should include the appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies. A table of authorities, including cases (alphabetically arranged), statutes, and other authorities, with references to the pages of the brief where they are cited, is also necessary.
When referencing the record, it is important to include the corresponding brief page number and to refer to the parts of the record contained in the appendix filed with the appellant's brief, citing the pages of the appendix. The statement of jurisdiction should outline the grounds for appeal, explaining why the court has jurisdiction to hear it. It should also include the basis for the appeal, the facts of the case, and the date of the order being appealed.
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Brief structure
The structure of an appellate brief is important, and there are rules and stylistic guidelines to follow. In the US, Rule 28 of the Federal Rules of Appellate Procedure outlines the requirements for briefs. While the language and organisation of the rule have been amended to make it easier to understand, several substantive changes have been made.
Firstly, a brief must include a statement of the case, which describes the nature of the case, the course of proceedings, and the disposition of the case, or procedural history. This should be separated from the statement of facts. The statement of facts should include only the facts relevant to the issues under review and should refer appropriately to the record.
Secondly, a brief must contain a summary of the argument, which clearly and accurately states the arguments made in the body of the brief. This should not merely repeat the argument headings but should include the appellant's contentions and the reasons for them, with citations to authorities and parts of the record. Each issue should also include a concise statement of the applicable standard of review.
Thirdly, a brief should include a short conclusion stating the precise relief sought. This should be a concise statement of the rulings presented for review.
Additionally, an appellant may file a reply brief in response to the appellee's brief. This must include a table of contents and a table of authorities, including cases (alphabetically arranged), statutes, and other authorities, with references to the pages of the brief where they are cited. It is important to note that the use of terms like "appellant" and "appellee" should be minimised in briefs, and actual names or descriptive terms should be used instead.
When discussing case law, it is important to analyse and explain the cases rather than simply citing them. The best type of case to rely on is one with the result you seek. It is also important to keep up with new briefing practices and proofreading techniques and to be wary of citing only old precedents. The appearance of the brief is also important, and it should look polished and easy to read.
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Standard of review
The standard of review is a critical factor in determining the likelihood of success in an appeal. It reflects the law's perspective on an appellate court's ability to make the right decision on a given issue. Most appellate courts require a separate section in an appellate brief on the standard of review that applies to the issues being discussed.
Standards of review are important to consider when assessing the likelihood of success of an appeal, but many other factors can influence the decision to appeal. Appellate courts give added weight to the decisions of trial courts on issues where they are concerned about making determinations based solely on a written record of the trial.
Findings of fact and other "essentially factual" issues are reviewed for clear error. This standard is derived from the Federal Rules of Civil Procedure, which state that a court of appeals "must not... set aside" a trial court's "findings of fact, whether based on oral or other evidence... unless clearly erroneous... [and] must give due regard to the trial court's opportunity to judge the witnesses' credibility." The appellate court cannot reverse the district court's findings if they are "plausible in light of the record viewed in its entirety," even if the appellate court disagrees.
When discussing case law, it is essential to analyze it thoroughly. Explain why the cases you rely on should be controlling, rather than those cited by your opponent or the lower court. Group common themes together and consider the persuasive force of the decisions you cite as a whole. It is also crucial to keep up with new briefing practices and proofreading techniques. Be cautious about citing only old precedents, as this may not always be advisable.
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Typography
The appearance of an appellate brief is not as important as its substance, but it still matters. A polished and easy-to-read brief can help the reader focus on your message, rather than the mechanics of reading. Matthew Butterick's Typography for Lawyers offers excellent advice on how to improve the appearance of your brief.
When it comes to case law, it is important to analyse and explain the cases you cite, rather than simply listing them or repeating what they say. Choose the most relevant cases to support your argument, and group common themes together. Be wary of citing only old precedents, and be sure to keep up with new briefing practices and proofreading techniques.
Your brief should include a statement of the case, which describes the nature of the case, the course of proceedings, and the disposition of the case, as well as a statement of the facts. This should be followed by a summary of your argument, which must be clear and accurate, and not merely repeat the argument headings. Be sure to include citations to the authorities and parts of the record on which you rely.
The brief should also include a table of contents with page references, and a table of authorities, including cases (listed alphabetically), statutes, and other authorities, with references to the pages of the brief where they are cited. When referring to the parties, use their actual names or the designations used in the lower court, such as "the employee" or "the injured person".
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Frequently asked questions
Case law does not need to be attached to an appellate brief, but it should be included within the brief.
Case law citations in an appellate brief should follow the relevant Supreme Court Rules. In the US, for example, a table of authorities—including cases, statutes, and other authorities—should be included, with references to the pages of the brief where they are cited.
It is recommended to use your best three cases. Do not use long "string cites".
A "string cite" is when you list multiple cases or regurgitate what an opinion says without explaining why the cases you rely on are important.
Think carefully about the persuasive force of the decisions you cite as a whole. The best type of case to rely on is one with the result you seek. If this is not possible, use a case with good language that is distinguishable from its outcome. Also, keep up with new briefing practices, such as the shorter "cleaned up" signal in your citations. Appearance matters, so make your brief look polished and easy to read.
