APPELLATE BRIEF WRITING: MAKING A BRIEF …

1 APPELLATE BRIEF writing : MAKING A BRIEF HELPFUL AND PERSUASIVER obert B. Dubose, Jones & Townsend, LLP1844 Harvard StreetHouston, Texas 77008713-523-2358713-522-4553 (fax)STATE BAR COLLEGE SUMMER SCHOOL 2007 Robert B. DuboseALEXANDER, DUBOSE, JONES & TOWNSEND, LLP1844 Harvard StreetHouston, Texas 77008(713) 523-2358(713) 522-4553 (fax)e-mail: Law School ( cum laude, 1993)Editor, Harvard Journal on LegislationRice University, ( magna cum laude, Philosophy, 1990)CERTIFICATIONS AND PROFESSIONAL ACTIVITIESB oard Certified in Civil APPELLATE Law, Texas Board of Legal SpecializationAdjunct Professor, APPELLATE Advocacy, University of Houston Law School (1997 - present) APPELLATE Section of Houston Bar AssociationChair Elect (2007 - 2008)Council Member (2001 - present)EXPERIENCEALEXANDER, DUBOSE, JONES & TOWNSEND, LLP, PartnerCOOK & ROACH, , Associate (1997-99) and Partner (1999-2006) in APPELLATE GroupMAYOR, DAY, CALDWELL & KEETON, , Associate in Litigation Group (1993 - 1997)

2 REPRESENTATIVE LEGAL PUBLICATIONSA uthor/Speaker for State Bar of Texas CLE programs on the following APPELLATE and Trial topics: Legal writing -2005, 2006; Oral Argument - 2002; APPELLATE BRIEF Structure - 2003; Discovery Objections - 1998 Author/Speaker for Houston Bar Association CLE programs on the following APPELLATE topics: Error Preservationin Post-Verdict Motions - 2001; Judicial Survey - 1997; Legal writing - 2004 Author/Speaker for University of Texas CLE program on APPELLATE BRIEF writing - 2003 Author/Speaker for South Texas College of Law CLE programs on the following topics: Post-Verdict Motions -2001; Appealing Summary Judgments 2000 BRIEF WritingiiiTABLE OF CONTENTSTABLE OF OF CHARACTERISTICS OF A WINNING winning BRIEF is written from the perspective of the reader, not the winning BRIEF helps the court understand the argument more winning BRIEF is most important stage in BRIEF writing is not writing , but FOR SPECIFIC BRIEF : the most persuasive cover is a professional of parties and counsel: list all counsel, not just current of contents and index of authorities: make the tables clean; make them right.

3 Of the case: include only the information required by the presented: balance the need for brevity with the need for persuasive of length of issues: one sentence vs the deep issue .. issues vs. persuasive of facts: avoid argument, but use the opportunity to inferences, legal conclusions, and unnecessary adjectives and the facts bad of argument: it is not just a : winning with with the best argument and the best the an argument, not a law review article or a court short summaries and topic the argument around effective headers and a logical argument Logical outline with facts and law: discuss legal rules in the context of the relevant facts and discuss thefacts in the context of relevant of using synonyms, repeat important words and unnecessary arguments, law, facts, and the Court s.

4 Consider carefully the relief you : use an appendix only for documents that are required or very WritingivTABLE OF AUTHORITIESCASESB rief of Petitioner Utica National Insurance Company of Texas, Utica Nat. Ins. Co. v. Am. Indem. Co.,141 198 (Tex. 2004) (No. 02-0090)..5 BRIEF on the Merits of Petitioner Harry J. Joe, Joe v. Two Thirty Nine Joint Venture, 145 150(Tex. 2004) (No. 02-0218)..5 Delta Air Lines Inc., and Al Perez s BRIEF on the Merits, Delta Air Lines, Inc. v. Black, 116 745(Tex. 2003) (No. 02-0255)..5 Provident Life and Acc. Ins. Co. v. Knott, 128 211 (Tex. 2003)..10 Tesco American, Inc. v. Strong Industries, Inc., 49 Tex.

5 Sup. Ct. J. 448, 2006 WL 662740(Tex. March 17, 2006)..3 STATUTESTex. R. App. P. (g)..2, 3 Tex. R. App. P. (a)..3 Tex. R. App. P. (b)..3 Tex. R. App. P. (c)..3 Tex. R. App. P. (d)..4 Tex. R. App. P. (e)..4, 5 Tex. R. App. P. (f)..6 Tex. R. App. P. (g)..7 Tex. R. App. P. (h)..8, 9 Tex. R. App. P. (i)..15 Tex. R. App. P. (j)..16 Tex. R. App. P. (a)(1)..3, 7 Tex. R. App. P. (a)(1)(B)..6 Tex. R. App. P. (a)(1)(A)..3 Tex. R. App. P. (a)(1)(B)..4 Tex. R. App. P. WritingvTex. R. App. P. R. App. P. (i)..8 Tex. R. App. P. (a)..3 Tex. R. App. P. (b)..3 Tex. R. App. P. (c)..3 Tex. R. App. P. (d)..3, 4 Tex. R. App. P. (f)..4, 5 Tex. R.

6 App. P. (g)..6 Tex. R. App. P. (h)..7 Tex. R. App. P. (i)..8, 9 Tex. R. App. P. (j)..15 Tex. R. App. P. R. App. P. (a)..3 Tex. R. App. P. (b)..6 Tex. R. App. P. (c)..4 OTHER AUTHORITIESD aryl L. Moore and Amy Hennessee, Judicial Response to the Questionnaire, in STATE BAR OF TEXAS17 ANNUAL ADVANCED CIVIL APPELLATE PRACTICE COURSE, ch. 5, (2003)..TH5, 7 Bryan A. Garner, The Deep Issue: A New Approach to Framing Legal Questions,5 SCRIBES J. LEGAL writing 1, (1994/1995)..4 George D. Gopen, The Sense of Structure: writing from the Reader s Perspective (2004)..7, 13 Judge Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument(rev.)

7 1st ed. 1996)..1, 2, 4, 15 Justice Ruth Bader Ginsburg, APPELLATE Advocacy: Remarks on APPELLATE Advocacy,50 L. REV. 567 (1999)..2 Steven D. Stark, writing to Win(1st ed. 1999)..6, 7, 8, 13, 15 BRIEF Writing1 BRIEF WRITING: TIPS FOR MAKING A BRIEF HELPFUL AND paper identifies specific tools for MAKING abrief more helpful and persuasive . Part II of this papersuggests general goals for writing a winning appellatebrief. Part III provides specific advice for MAKING each ofthe required sections of the BRIEF helpful and this paper focuses on briefs in the court ofappeals, most of the goals and advice are equallyeffective for trial courts motions and briefs, as well asbriefs on the merits in the Supreme Court of Texas.

8 CHARACTERISTICS OF A purpose of writing an APPELLATE BRIEF is differentfrom many other types of writing . The purpose ofpaperback fiction is usually to entertain. The purpose ofacademic journals and law review articles is usually toedify. The purpose of personal journals is usually self-expression. But the purpose of an APPELLATE BRIEF is topersuade the judge that your client should win. To win, a BRIEF writer must think of a briefdifferently from other writing . We do not use the samewriting techniques that we would find in a law reviewarticle or fiction. Because the purpose of a BRIEF is topersuade the reader, writing a successful BRIEF requiresunderstanding the perspective, and the needs, of winning BRIEF is written from the perspective ofthe reader, not the of the most serious flaws in many appellatebriefs is that they are written for the wrong two most common wrong audiences are (1) thewriter, and (2) the ideal first wrong audience is the writer of the many lawyers stop working on their BRIEF when itfinally sounds persuasive to themselves.

9 But to make thebrief understood, and persuasive , to someone elserequires much more work. It requires more work becausemost of us write with a voice in our head that provides allof the necessary emphasis for our own writing . Forinstance, a long, complex sentence can make perfectsense to the writer, yet be completely incomprehensibleto the reader. It takes work to make our writing as clearas possible so that our audience will understand second wrong audience is the ideal judge. Theaudience many advocates imagine is an ideal judge whohas full knowledge of the law and great interest in thecase. This ideal judge has infinite time to read, research,and consider the arguments.

10 This ideal judge also readsbriefs in a quiet, library-like setting. Many advocatesroutinely write briefs under the assumption that, if thejudges are smart and fair, the judges will certainly agreewith the advocate s side of the issue because they willunderstand and be persuaded by reality, of course, is that judges rarely meet thisideal. Second Circuit Judge Ruggero J. Aldisertidentified the difficult reading environment that judgesface:Briefs usually must compete with a number ofother demands on the judge s time andattention. The telephone rings. The daily mailarrives with motions and petitions clamoringfor immediate review.