A "Great Brief" Makes Good Use of the Record

An attorney showed me a brief written by a well-known appellate lawyer, and said “This is a great brief. It’s well-written, logical and persuasive. You should write a column on how to write a great brief.” I told him, “That topic would need more than a column. I wrote a whole book on it.”

“Anyway,” I said, “you can’t tell it’s a ‘great brief’ just from reading the brief.” He looked puzzled, so I explained.

I was once asked to consult on a very big appeal, trying to get a multi-million dollar award against our client reversed. I read our opponent’s brief. It seemed excellent. Powerful language, smooth clear writing, and good use of the facts and the law. I showed it to a couple of the retired appellate judges on our appellate team, and they said “It’s a great brief. If you can’t rebut it, you’re going to lose the appeal.”

I took a much closer look at the “great brief”. I noticed that it kept reciting one very damning fact: our client had directed his attorney to lie to a federal official. The writer had sprinkled this assertion throughout the brief, about eight times. Some of these were followed by a citation to the record, but most were not.

When I checked the record, I found that the evidence did not support the assertion. Nor could the assertion be reasonably implied from the evidence that was in the record.

I asked one of the retired judges on our team, Presiding Justice (ret.) Chris Cottle, from California’s 6th District Court of Appeal (in San Jose): “Suppose the claim that our client told his lawyer to lie to the federal official is not true. Do you still think we’ll lose the appeal?” Chris thought about it, and said “Probably not. That’s the one fact that stood out for me.”

So here was my advice: start our reply brief with a strong attack on that claim, showing in detail that it’s not supported by the record and can’t be reasonably inferred from any evidence in the record. The brief should then gently suggest that the court might not want to trust anything else said by an appellate lawyer who would try to deceive the court about the record.

The “great brief” wasn’t so great after it was shown that its key fact was not supported by the record. The big damage award was reversed.

A large part of what makes a brief good is how well it takes advantage of the record. Good writing is important, of course, but if the brief fails to make the best (and accurate) use of the most persuasive evidence in the record, the brief does not do the best job of doing what the client hired the lawyer to do: win the appeal.

But how can you tell that just from reading the brief? You can’t. You need to go behind the brief.

Here’s another example, where the lawyer didn’t lie about the record—he simply failed to make the most of it.

I was brought in to review a draft appellate brief. It was well written, but something about it bothered me, so I decided to look at the record. I was very surprised.

Our appeal was from an adverse judgment after a bench trial. The judge had denied our client a permanent injunction in a contract dispute, based on the judge’s interpretation of the contract. While going through the documents, however, I noticed that earlier in the case, another judge had granted a preliminary injunction, based on her different interpretation—one favorable to us—of the same contractual language. But the draft brief had failed to mention that!

Think about it. The appellate lawyer was trying to persuade appellate judges to interpret the contract a certain way. Appellate judges are skeptical—they see the lawyer as a biased advocate trying to get them to reverse a neutral colleague. But what do we have here? A neutral colleague who disagreed with the judge who made the final ruling. Isn’t it likely that an appellate judge might find that persuasive—perhaps even more persuasive than the lawyer’s argument? A brief that omits that fact is not a very good brief, no matter how good the writing is.

When I review a record, I look for several things. First, I want the basis for the story I plan to tell in my “statement of facts”. Second, I want the procedural facts I will include in my “statement of the case”. Third, I want facts that make my side look good and the other side look bad. And fourth, I look for facts that make the trial judge look bad (if I represent the appellant) or good (if I represent the respondent).

And while doing this, I’m on the lookout for what I call “gems”. These are snippets of testimony or judge’s statements that I will include verbatim in my brief. Brief-writers usually use their own words to describe evidence. I prefer the raw material. If you were an appellate judge, what would have more effect on you: a lawyer’s paraphrase (which might have put some spin on the evidence) or the exact words used by a witness? If it’s important, the judge will want to see the raw testimony anyway, so why make her go look for it?

My briefs are strewn with these “gems”. But the brief I reviewed had none.

Here’s a gem the lawyer overlooked. The judge who issued the preliminary injunction actually wrote a short opinion explaining why she interpreted the contract as she did. It was concise and well-reasoned. A brief that includes this reasoning—and actually quotes it—would have a very good chance of getting a reversal, even without the lawyer’s excellent writing. For some reason I can’t fathom, however, the appellate lawyer left it out. Perhaps the lawyer just skimmed the record and missed it, or saw it but didn’t appreciate how much it could help him.

There’s more. I also found some juicy testimony from a member of the defendant’s board of directors, where he admitted that they didn’t like the plaintiff and were out to get her. This was not in the draft brief. I put it in—verbatim.

How should we evaluate coaches of athletic teams? One coach inherits a group of superstars and wins a championship. The other has only mediocre players, but wins some close games against teams with better talent. Which one is the “great coach?” I’ll take the latter.

Excellence is making the most of what you have to work with. And that’s what makes a “great brief.”