BRIEF WRITING AND ORAL ARGUMENT by CYNTHIA F. FEATHERS, ESQ. Attorney at Law Saratoga Springs and DENISE HARTMAN, ESQ. Assistant Solicitor General Division of Appeals and Opinions Office of the New York Attorney General Albany
NYSBA Appellate Practice Progra m Albany> NY December 8t 2009 Brief Writing and Oral Argument Cynthia Feathers, Esq., Saratoga Springs, NY Denise Ha:dman, Est}., New York State Attorney General BriefT riting: 15 minutes oflecture, 10 minutesfor questions Oral Argument: 15 minutes of lecture, 10 minutes for questions I. The A{![!ellate Brief A. The most important element of the appeal. B. The goal: persuading judges to reach the desired result. n. Before Writing the B:ri~f A. Consider using appellate counsel for objectivity and an appellate perspective. B. Carefully review the record on appeal to identify viable issues. C. In general, en-ors must be prese1 ved~ have a prejudicial impact. D. Do not advance every conceivable argument> only strong ones. E. Do thorough legal research - statutes and cases cited in trial court; Practice Commentaries and treatises for context; seminal and controlling authority that explicates the law; similar cases to analogize; dissimilar cases to distinguish. F. Do an outline. III. Statement of Facts A. Often the most important section of the brief. B. Strive for the ABC's: accuracy, brevity, and clarity. C. Generally, it works best to provide a cj:u onological narrative of facts needed for background and for support of your argument. D. This section should be easy to understand and compelling. 159
E. While the Statement of Facts should not be argumentative} it is a piece of advocacy: carefully choose the facts to present and to emphasize. F. Be honest: reveal bad facts} but find a way to mitigate them. G. Decide on a simple way to characterize the patties, and use the labels consistently throughout, such as "husband,, and "wife*' or ('landlord" and Htenanf 1 or ((the People" and "the defendant." H. Appellate courts seek a dignified, professional tone; eschew a shrill or emotional tone, and do not make ad hominem attacks or refer to opposing counsel by name. L Cite to the record for every sentence. J. If you are using the appendix method, create the appendix and insert the new page references. IV. A1 gument A. Usually the strongest point should come fi1 st B. Set forth controlling authority. C. Choose key, favorable cases; analogize them to your case. D. Distinguish important adverse cases. E. Limit the use of string cites, block quotes, and repetitive facts. F. Generally, do not add any new facts, G. Especially in a high court} make policy arguments. H. In the conclusion section, set forth the relief sought. V. Editing A. If practicable, set aside your draft for several days to have a fresh view for editing. B. Turn the raw draft into a polished, refined product that will persuade and delight busy and skeptical, busy judges. C. Bl'eak up paragraphs into manageable blocks. D. Make the opening of each paragraph the topic sentence and the last sentence a transitional one. E. Break up long sentences into shorter statements. F. Use the active voice and plain, but precise language. G. No matter how complex the material, achieve clarity. H. Add subheads to serve as sign posts. 160
VI. Respondent's and Reply Briefs A. A respondent's brief should stand alone as an affirmative statement of why the challenged decision should be affirmed. B. If the lower corut result is right, but the reasoning is arguably wrong} consider advancing an alternate ground for affh mance. C. A respondent should feel free to reframe issues, not merely defensively counter appellant's points. D. Disclose adverse controlling authority missed by appellant E. Study cases cited by appellant; distinguish ones that matter. F. Reply briefs should not repeat points made in appellanfs main brief, but should pointedly and pithily respond to objectionable) material points in respondent's brief and help sharpen the debate for oral argument. VII. Controversial Issues A. Preliminary Statement- Should you include one? Should it provide only jurisdictional facts? Should it encapsulate the case and your arguments? B. Questions Presented -They should be sufficiently 11eutral to be credible, but framed to capture your argument and standard of appellate review. C. Summary of Argument- Required in federal appeals, but may be helpful as a roadmap in complex appeals in state comts. D. Table of Contents -Topic headings or complete sentences? How much detail? If you use complete sentences as topic headings in your Statement of the Case and well-considered point headings in your Argument, the Table of Contents can also provide a roadmap of your case, E. Font Size-Downstate cou1ts require 14 point But it lengthens your briefs in the upstate cou1ts that have strict page limits. How low can you go? F. Bluebook vs. NY Repmts Style Manual. G. Parallel Cites- Generally) cite to officialtepmts only. When a case is unreported, should you cite to Westlaw or LEXIS or both? H. Websites- Beware. 161
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