By: Laurie A. Lewis*
An appellate brief ’s Statement of Facts is critical to a successful appeal. The client trusts the attorney with his or her story. To fully hear it, the attorney must actively listen and demonstrate empathy in the initial interview. The attorney needs to step into the client’s shoes to retell the story at trial. On appeal, however, the attorney needs to step into the appellate judge’s shoes. The story must be recast for an audience knowing nothing about the client. It must be interesting, and appeal to the judge’s spirit of justice. If the client suffered an injustice in the court below, the judge will seek to “do justice” for the client.
For the judge to right a wrong, the attorney must respect the appellate venue. Not only must the attorney craft the client’s brief with a strong theme of justice, but also in accordance with the appropriate standard of review and court rules. Then the attorney must polish the client’s story to achieve a clear, crisp, and captivating narrative. Writing an appellate brief requires sufficient training in people-oriented, appellate advocacy, and composition skills. Yet, the current legal education model falls short in providing these skills. The current model is more rules based than people based. Moot court competitions and mandatory appellate advocacy coursework typically involve canned fact patterns, denying the student opportunities for client interviewing and counseling. Clinical legal education offers excellent practical skills training, but participation is elective and opportunities are limited.
Therefore, most law school graduates and junior attorneys lack practice-ready skills. This Article calls for changes in the law school curriculum to better prepare students for lawyering. Indeed, employers in this tight legal job market are demanding change. Client-centered skills in interviewing and counseling should be required. Appellate advocacy and composition skills training should be strengthened. Doctrinal classes should integrate appellate practice into their curricula. Proper skills training will equip the attorney to step into the client’s and the judge’s shoes and write a clear, crisp, and captivating client story that is consistent with appellate standards of review and court rules. In reaching a just result, the judge, the attorney, and the client are all winners in the game of appellate musical shoes.
As the attorney, you are your client’s voice. Your client trusts you with his or her story. Assume that your client loses at trial. When you and your client perceive an injustice, you appeal. This provides yet another opportunity to tell your client’s story and to see that justice is served. What is one of the most critical things you can do to help your client prevail? The answer: write a clear, crisp, and captivating Statement of Facts.
It sounds simple. It is not. Writing such a Statement of Facts in an appellate brief takes a large amount of reflection, planning, and practice. Indeed, writing a convincing narrative is tedious work, and often the part of the appellate brief that many attorneys labor over the most. This is because, as with a musical score, there are so many possible variations. Some narratives will be pleasing to some listeners, while others will fall upon deaf, or worse yet, uncaring ears. The listeners, the appellate judges, are human. It is to their humanity and spirit of justice that the appellate advocate must appeal.
Making an appeal to the judge’s humanity, however, does not mean writing a Statement of Facts that is a heart-tugging “sob” story. “[O]vert appeal to emotion is likely to be regarded as an insult. (‘What does this lawyer think I am, an impressionable juror?’)” But you can write your client’s story to appeal to the judge’s sense of justice so that, in the end, the judge will intuit a wrong has been committed against your client. And if there is a way the judge can “do justice” to redress this wrong, he or she most likely will. The appellate judge generally has an amazing degree of freedom to decide the case as he or she deems best. In seeking to do justice, the judge has the intrinsic satisfaction of knowing not only that your client is receiving justice under the law, but so will future similarly situated persons. Indeed, appellate judges perceive that their job is to demand just results for the benefit of society as a whole.
Your job is to make the appellate judge want to provide justice to your wronged client. Whatever the area of law, its basic legal principles are generally well-established in the “black letter law.” The appellate judge is an expert in such legal principles, whether derived from statutory or common law. Within certain constraints, the judge sitting on an appellate bench customarily has some “wiggle room” to reach a just result in any given case. Furthermore, the appellate judge is an expert on briefs. Before receiving yours, the judge is likely to have read hundreds or thousands of briefs. The judge will be familiar with most of the pivotal cases and will be aware of how laws have been applied to many fact scenarios. The judge will not, however, know anything about your client. It is you who must convincingly tell the judge your client’s story.
The story or ballad needs to be “good.” It should reflect a moral or theme, set out in as clear and captivating a manner as possible. The ballad should come to life through word imagery and selective record excerpts. The product should result from, first, putting yourself in the client’s shoes at trial, and, second, putting yourself in the judge’s shoes on appeal. When you do, your musical variation may be heard, appreciated, and published not only for your client’s benefit, but for others in like circumstances.
The influence of a well-conceived and well-constructed Statement of Facts cannot be overstated. As one of America’s greatest appellate experts, John W. Davis, said, “[I]t cannot be too often emphasized that in an appellate court the statement of the facts is not merely a part of the argument, it is more often than not the argument itself.” It is imperative, then, that we teach law students and junior attorneys the skills required to produce clear, crisp, and captivating client stories for the appellate venue.
This Article focuses on an effective writing process of an appellate brief’s Statement of Facts in the academic and practitioner contexts. Part I considers the importance of actively listening to a client’s story and stepping into the client’s shoes for trial. Part II considers the importance of moving into the judge’s shoes on appeal, and how doing so guides the writing of the story. Part III discusses the critical need to respect the context in which the appeals band is playing and to write in accordance with the appropriate standard of review and court rules. Part IV addresses the urgency of practical skills training, and for law students and junior attorneys to wear both sets of shoes. Finally, Part V offers some practical notes on how to write a clear, crisp, and captivating Statement of Facts ballad in an appellate brief. Doing so could mean more than a new pair of shoes for you and your client. It could mean having your ballad heard and subsequently prevailing on appeal—which is sweet music indeed for you both.
I. Stepping Into the Client’s Shoes: The Art of Active Listening to Hear and Tell A Captivating Story
The narrative originates with the initial client interview. I do not mean an intake procedure to obtain some of the client’s personal information. Rather, I mean the first “real” interview, when the client comes to tell you her story in hopes that you can be her legal voice to redress perceived wrongs. Some clients are more educated, articulate, and legally savvy than others. All clients, however, keenly want to be heard. That is why they are in your office—to tell their story. “The story is central to the way we process facts. It is the basic system we use to teach, to understand, to instill moral precepts and to memorialize important events.” You need to have more than legal knowledge to hear and tell your client’s story fully and accurately. You also need empathy, as well as listening and composition skills.
A. Active Listening to Be Present
Client-centered legal interviewing and counseling has been around for several decades. This approach to lawyering originated when law professor David Binder collaborated with psychologist Susan Price to release a textbook that focused on a nondirective, problem-solving model. Today, their ground-breaking textbook remains a predominant influence in clinical legal education. Although different models of such client-centered counseling are advanced, most agree that you first need to actively listen to what the client says in order to obtain the client’s story.
In active listening, you reflect back to the client what you heard the client say. You do not simply repeat, or “parrot,” what the client said. Rather, your response conveys an understanding of the client’s feelings as well as of the incident itself. But you can only do this if you are “present” with the client. This means closing your laptop, stopping incoming calls, avoiding looking at your watch, and putting away your smart phone, iPod, iPad, and other electronic devices. It also means giving your legal pad and pen a rest, at least during the early stages of the interview. Doing so enables you to maintain eye contact and overtly demonstrate interest in what your client is saying.
In addition to the outward signs of showing interest, pay attention to what is going on inside your head. Put aside what you need to find out; do not think about your response before the client finishes speaking; and, most importantly, refrain from jumping to a premature legal analysis. After the client tells her story, including why she is seeking your help and what kind of relief she desires, you can follow up with clarifying questions, frame suitable responses to what she has told you, and consider feasible legal solutions. And, yes, write on your legal pad.
Active listening embodies not only what you hear your client say but also what you reflect back to your client. Thus, active listening is, first, hearing the content and emotion of your client’s story, and, second, verbalizing—using different words to repeat what your client just said. By reflecting back not only the substance of what your client says but also reflecting back your client’s feelings, you can show a depth of understanding not otherwise possible by merely stating, “Yes, I understand.” Such a statement is more characteristic of passive listening than of active listening. It is not enough to let your client do all the talking. Through active listening and restating your client’s words, you build rapport and encourage more in-depth expression.
B. Demonstrating Empathy to Build Rapport
Stepping into your client’s shoes and permitting yourself to capture their feelings shows empathy. Try to see the situation from your client’s perspective. You need not agree with your client’s perspective but you must try to respect and honor her feelings. In the words of Atticus Finch, “You never really understand a person until you consider things from his point of view . . . until you climb into his skin and walk around in it.”
You show empathy when you consider your client’s dilemma from her perspective. Showing empathy builds trust in the attorney-client relationship. Trust is pivotal. It includes faith in your loyalty, a belief in your competence, and a level of comfort in dealing with you as the case progresses. Trust emboldens the client, who is generally under stress, to share more freely.
Client stress manifests itself in many forms. Consider, for example, the client who is slouching over, head bent, avoiding eye contact, acting hesitantly, mumbling timidly, and sighing frequently. In active listening, you acknowledge and reflect back such nonverbal signs of emotion. We lawyers tend to shy away from our clients’ emotions, whether these are implicitly or explicitly expressed. Most of us are not trained psychologists or therapists. But naming our client’s emotions shows an understanding of their entire person, not just their legal problem.
Often the law school experience encourages students to focus on the legal rule to the exclusion of the client as a person. Experienced practicing attorneys, however, know that every legal problem is interwoven with facts and feelings. Wrapped up in any client’s problem is a host of feelings—whether shame, embarrassment, bewilderment, rage, desperation, hate, or despair. A client can be remorseful and a client can be revengeful. Having practiced domestic relations law, I was confronted with a full range of client emotions. Yet, even in other less volatile areas of the law, clients have and express emotions. “All clients arrive at the law office with some kind of emotional stake in the matter that has prompted them to seek legal advice. A client may feel concern and anxiety, pain and outrage, happiness and joy, or sadness and depression.”
Through the reflection process, you identify your client’s emotions. Do not concern yourself with the chance you will not get them “right.” Most clients will appreciate your showing empathic responses and simply correct any errors of perception you might have. Do not be concerned that consideration of your client’s feelings wastes time. To the contrary, authentic empathic responses centered on your client’s emotions will save time. Once relieved of their emotional burden, your client is more willing to listen to and work with you to elicit needed case information. Try to empathize fully with your client’s position so that, when it comes to telling your client’s story, the ballad will be authentic, vibrant, and compelling.
C. Composing the Story to Show Injustice
The need for composition skills arises when, after actively listening and demonstrating empathy, your legal training comes to the fore. Licensed as an attorney and counselor at law, you have what your client does not: legal acumen and the ability to bring her story into a court of law. To compose a persuasive narrative, you need to integrate your legal knowledge with the client’s accounting of her situation so that justice comes into play. But you must also write in a concise, clear, and grammatically correct fashion.
At the trial level, composing the story usually involves considerable detail, drawing upon documents, exhibits, and witness testimonies. Your focus is on gathering facts and presenting them, consistent with legal principles, to support your client’s position. The story you write often involves an emotional appeal to jurors, who are presumed not to have an understanding of the interrelationship between facts and law. You are, in effect, in your client’s shoes when telling the narrative at trial. On appeal, you are not writing for a jury but rather for a judge, who is well versed in fact-law interrelationships. The judge does not, however, know anything about your client’s unique facts. If you can present these well—making them leap off the page to engage the judge’s interest and spirit of justice—then you are that much closer to winning the appeal. For at the appellate stage, you step out of your client’s shoes and jump into the judge’s to write a narrative that resonates with humanity and justice not only for your client but for society.
II. Stepping Into the Appellate Judge’s Shoes: Retelling the Client’s Story with a Focus on Justice
Once you jump into the appellate judge’s shoes, keep in mind two critical points. First, the judge knows nothing about your case. Second, how the judge decides your case will affect not only the immediate parties but also parties in other cases. If you keep these points in mind, you will remain in the judge’s shoes. And this is the best vantage point from which to write a persuasive Statement of Facts.
Persuade you must. Appellate judges look for any way they can affirm the lower court’s findings. “The appellant, particularly, must tell an eloquent tale, for he must overcome the court’s natural disinclination to disturb the resolution of the controversy in the lower court.” Your story must be so captivating that a busy judge, having no experience with or empathy for your client, will sit up and take notice. But it is no small feat to grab the judge’s attention. A judge’s workload is tremendous. Justice Sarah B. Duncan points out that “[t]o write a [q]uality brief, a lawyer must first understand an aspect of being a judge I frankly did not comprehend until I became one—volume and limited resources.” Given such logistical challenges, appellate judges appreciate all the more briefs with accurate, clear, and concise client narratives based upon “common-sense justice” within the context of a “legal doctrine.”
Even if your brief is well written overall, a judge may lose interest in your story. Your brief is likely not the only brief the judge will read on any given day. Hence, the story must be compelling and captivating. Even if the story is complex, you must employ the art of a storyteller to make it come alive for the judge. Once immersed in a human drama, the judge looks for the interplay between the captivating story and justice. For the appellate judge is keenly sensitive to the possibility that your client was the unwitting victim of an injustice. “The consummate advocate will inspire his narrative with meaning so that only the legal doctrines that favor his client seem relevant and appropriate. . . . [If] the facts are written compellingly, your discussion of the law need only articulate and confirm the decision your tale demands.”
The appellate judge is also highly sensitive to whether you write the tale consistent with the appropriate standard of review. If you do not, you may miss an opportunity to persuade the court that your client’s position is just. And that is, after all, your primary role as advocate.
Finally, you must learn about the judges who are likely to read your brief. Just as at the trial level, you pour over the jury list to anticipate strategy, you need to research the appellate judges who are likely to rule on your client’s fate. Consider recent trends and approaches to the law to brainstorm the message you want the judges to hear. Learning about the appellate judges can help you wear their shoes when recasting your client’s story. Finding the proper fit of their shoes, however, requires respecting the appellate venue.
III. Know the Theatre Where the Appeals Band is Playing: Respect the Standard of Review and Court Rules
Regardless of how well you write your client’s ballad, your arduous work is to no avail if you fail to pay careful attention to the appropriate standard of review and the appellate court’s rules. The theatre in which the audience sits is pivotal for determining how best to write the ballad. If you fail to heed the appellate process, your client’s ballad may never be heard.
A. Understand the Standard of Review’s Impact on the Story
While the standard of review impacts most significantly upon your argument, it also implicates how you write your client’s narrative. The Statement of Facts must be set forth consistent with the appropriate standard of review. This standard is the degree of scrutiny an appellate court will give an issue already decided in the lower court.
Appellate courts usually apply one of three standards of review: de novo, abuse of discretion, or clearly erroneous. De novo review is applied to questions of law or mixed questions of law and fact. Such review essentially affords no deference to the decision below and the appellate court is free to decide the legal issue as if it had not come before the trial court in the first place. Some examples of issues reviewed de novo include motions for summary judgment, statutory interpretations, and constitutional questions.
Under the abuse of discretion standard, the appellate court reviews matters entrusted to the trial judge’s discretion. This standard is the most situation-specific and affords the most deference to a trial judge’s decisions. Only if abuse or arbitrariness can be shown will an appellate court overrule the lower court. In the words of the U.S. Court of Appeals for the First Circuit concerning evidentiary rulings, “[o]nly rarely—and in extraordinarily compelling circumstances—will we, from the vista of a cold appellate record, reverse a district court’s on-the-spot judgment concerning the relative weighing of probative value and unfair effect.” Some examples include discovery issues, Rule 11 sanctions, and courtroom management.
Similar to the abuse of discretion standard, under the clearly erroneous standard the appellate court accords substantial deference to the findings of fact made by the trial court judge. The appellate court reviews the entire evidence and will overturn a lower court’s decision only if it is left with the clear conviction that a mistake has been committed. According to the U.S. Court of Appeals for the Seventh Circuit, “[t]o be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must, as one member of this court recently stated during oral argument, strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.” Some examples include ultimate fact, motivation, and who, what, when, and where questions.
In recasting your client’s story, you must respect the applicable standard of review. Do not state facts as if they were true if the finder of fact below, whether bench or jury, has determined differently. You are not retrying the matter anew. Fact-findings are not reversible unless clearly erroneous. In claiming that there was prejudicial error, such as when the trial court refused to allow certain evidence, you need to include factual evidence for both sides of an issue. Then you can demonstrate that, but for this error, the verdict might have been otherwise. Arguing insufficiency of evidence requires that you not only provide evidence favorable to your client but also note all evidence favorable to the opposition; only then can you show why that evidence was insufficient. On the other hand, if your appeal follows a nonsuit or directed verdict, then you can assume all of your evidence was true. Thus, always respect the standard of review when presenting your client’s story; the same is true with regard to court rules.
B. Scrupulously Follow Court Rules
Whether in federal or state court, intermediate or highest courts of appeals, courts have specific rules. In federal circuit courts of appeals, for example, you must comply with both the Federal Rules of Appellate Procedure and the relevant circuit court’s local rules. Courts expect these rules to be followed. You do need to sweat the details. “A court’s insistence on a particular format, font size, page limitation, or word limitation may appear arbitrary, but it is not. The rules exist because judges have concluded that they can more effectively decide cases if briefs are in the correct format . . . .”
If you fail to follow court rules, your reputation suffers; when your reputation suffers, it negatively impacts your client’s case. Moreover, not only may the judges be irritated but they may also strike your brief entirely. Attorneys who try to circumvent rules by using slightly smaller margins and condensing font drew this terse response from Judge Kozinski: “It tells the judges that the lawyer is the type of sleazeball who is willing to cheat on a small procedural rule and therefore probably will lie about the record or forget to cite to controlling authority.”
Court rules address the format for facts. Two general types of facts are required: procedural and substantive. Some courts require a Statement of the Case that includes both procedural history and narrative history. Other courts require the procedural and narrative facts to be presented separately. All facts must be honest and accurate. “Accuracy makes you a friend of the court and keeps you one throughout your career.” If you are caught misstating the record, everything you write thereafter will be viewed with suspicion. Your dishonesty and misrepresentation could also anger a busy judge. And, for every fact you write, an exact citation to the record must be provided. It makes the judge’s work easier, and it enhances your credibility.
In addition to correct citations to the record, you must also comply with Bluebook citation rules. Sloppy citations to the record and authorities similarly undermine your credibility. Appellate judges and their law clerks check many, if not all, sources and citations. If your brief is replete with citation errors, its strength is diminished. Poor citations send a message that you did not spend the time needed to polish your brief or, worse, that you do not respect the court. I tell students that when opposing briefs are submitted and yours has poor citation form, the judge is likely to use the other side’s brief. The judge may infer that the brief with correct citation form is likely to have the more reliable legal analysis as well.
IV. Teaching Law Students and Junior Attorneys: Emphasize the Skills Needed to Wear the Client’s and Judge’s Shoes
Many budding and newly minted attorneys have not been taught the practical skills needed to equip them for appellate practice generally, much less to hear and retell a captivating client narrative. Law school teaching has traditionally focused on the application of theory, instead of focusing on the application of practical skills to better prepare for competent lawyering. Legal education experts are becoming increasingly more vocal about the need to change the academic environment to produce more competent, “practice-ready” attorneys. Under the current academic model, however, law students are taught to research legal issues, write briefs, and present oral arguments. In broad terms, law students are taught to “think like a lawyer.” “Law professors almost universally refer to their task as teaching their students to ‘think like a lawyer’ or teaching their students ‘legal analysis.’” The emphasis is upon written and oral persuasive analysis, not practical skills.
“Thinking like a lawyer” is a ubiquitous phrase heard throughout law school. The infamous Professor Kingsfield in The Paper Chase contrasts this form of thinking, which is reputedly clear and coherent, with the “minds full of mush” that students show up with. To be sure, “thinking like a lawyer” is a vital tool. But too much focus on legal analysis produces law graduates who are ill-equipped to counsel people. And to be successful in practice, attorneys must know how to communicate and empathize with their clients. They need to learn to “listen like lawyers.”
In short, law students must be taught practical, people-oriented skills. Learning to listen to clients is one of those skills. Most law schools do a fine job of teaching legal analysis, but not people analysis. Chief Justice Warren E. Burger stated: “The shortcomings of today’s law graduate [lie] not in a decent knowledge of law but that he has little, if any, training in dealing with facts or people—the stuff of which cases are really made.” Practicing law means working with people and not rules.
First year law students are introduced to the IRAC (Issue-Rule-Application-Conclusion) paradigm as a useful tool for applying legal rules to a set of facts. For a given case, the Issue is the legal issue in the case; the Rule is the rule formulated by the court in the case; the Application is the application of that rule to the facts of the case; and the Conclusion is what that rule means for the parties involved in the case. This paradigm helps students make logical connections between pieces in a legal puzzle. The drawback with the IRAC model, however, is that it does not really include people.
Although legal educators are increasingly recognizing the importance of teaching practical, people-oriented skills, legal education changes at a glacial pace. Thus, while legal skills such as interviewing, counseling, mediation, negotiation, and conflict resolution are recognized as important, they are generally taught in elective courses. If students do not enroll in such courses, they may sometimes pick up “people skills” in externship and internship settings. But the skills instruction is rarely in-depth enough to prepare law school graduates for competent lawyering.
Most law students have an introduction to the appellate advocacy process in their mandatory legal research and writing classes, including the writing of an appellate brief. But problems are designed around a canned set of facts, depriving students of the opportunity to conduct client interviews to obtain a client’s story. Students are not able to practice skills of active listening and demonstrating empathy, much less determine which witnesses and documents to use when creating narratives. Therefore, most law students are already starting from a disadvantage when it comes time to write a compelling Statement of Facts in an appellate brief. Often the result is that this critical section lacks people orientation. These canned problems become an artificial exercise in appellate writing by failing to offer students a realistic window into appellate practice.
Appellate moot court competitions similarly fail to provide law students with realistic opportunities, both for written and oral legal argument. The Statement of Facts is often perceived as a “throw-away—a section to be done after the argument sections have been completed,” rather than as an opportunity for persuasive advocacy. Such competitions also generally do not emphasize brevity. Writing concisely should, however, be a high priority for both moot court competitions and the classroom experience overall. Moreover, as with the mandatory appellate advocacy instruction, moot court participants usually receive a canned set of facts. But in legal practice obtaining facts can take months or even years of painstaking work. Such work involves not only client counseling, but sifting through piles of witness testimonies and document exhibits. Most law schools therefore fall short of providing students with practice-ready appellate skills.
The rapidly growing clinical legal education movement, however, does hold promise for people-oriented skills instruction. Much of the clinical teaching methodology is structured around attorney-supervised student representation of real clients. It has the appeal of not only teaching students practice-ready lawyering skills, but also professional ethics and social justice advocacy. But clinical opportunities are optional and limited in number.
As the job market remains very tight for law school graduates, and employers increasingly demand that graduates have a certain level of lawyering competency, offering elective participation in clinics is not enough. Nor is it enough that the ABA Standards for Approval of Law Schools mandate that each student receive substantial instruction in “other professional skills generally regarded as necessary for effective and responsible participation in the legal profession.” Courses that fulfill this requirement may still fall short of the people-oriented skills instruction that provides students with opportunities to practice client-counseling skills.
More needs to be done to ensure our law school graduates are “practice ready.” Given that legal writing programs integrate substantive law with appellate brief writing, doctrinal courses should similarly integrate appellate practice into their substantive law curricula. Procedure and the law go hand-in-hand. Moreover, although few lawyers actually practice appellate advocacy, law students who learn to integrate appellate practice skills with legal principles will be that much better prepared as trial advocates.
Legal writing and doctrinal classes should also reinforce strong written composition skills. Law school is a professional school and “[s]tudents should learn to regard their course work as the first work product of their legal careers.” Papers and exams should be assessed not only for their substantive content, but also for grammar, spelling, citations, and typographical errors. If higher standards of professionalism were demanded in law school, then perhaps newly minted attorneys would take greater care with their brief writing.
In light of current legal education, then, it comes as no surprise that most junior attorneys require further training in appellate advocacy. In particular, advanced legal training should include client-centered practical skills. Experienced litigators know not to entrust junior litigators with writing the Statement of Facts in appellate briefs. They recognize and respect the critical role this narrative plays on appeal. In the words of one seasoned litigator to an inexperienced associate, “You write the law. Let me write the statement of facts because that is where the biggest difference can be made.”
Usually, the client’s story should not be written by the litigator who handled the trial. Precisely because the trial litigator is the most familiar with the case, she might fail in writing a clear and captivating narrative. Whether or not it is the trial litigator who writes the Statement of Facts on appeal, the writer should be grounded in storytelling techniques. The attorney should also be well versed in appellate advocacy more generally, in the event the attorney is called upon to write an appellate brief.
Legal education must change to equip graduates with practice-ready skills. Among these skills are interviewing and counseling clients, which includes active listening to hear clients’ stories. Such listening will facilitate accurate storytelling. Given that most junior attorneys were trained under the traditional legal education model, these attorneys require advanced legal training in people-oriented skills. Therefore, both law students and junior attorneys should have more appellate advocacy instruction because proper legal skills training will better prepare attorneys to play the game of appellate musical shoes. But playing to win requires writing a persuasive Statement of Facts ballad.
V. Practical Notes for Composition: How to Write a Clear, Crisp, and Captivating Ballad
Before you begin to write, prepare a detailed outline of your brief. This is a mantra I invoke with students each time they write a brief. For the Statement of Facts in an appellate brief, this means first conducting a painstaking review of the record. Create an abstract that addresses all procedural matters and evidentiary rulings, and details all facts on the issues. Remember to include unfavorable as well as favorable facts. Sometimes students complain it is too time-consuming to create an abstract and then write an outline. In the long run, however, this initial process saves time.
Working with a detailed abstract facilitates providing record citations throughout the Statement of Facts. Most judges will expect a record citation for every fact so that they can be assured of the accuracy of that fact. Citations must be exacting, forthright, and in proper form.
Working from an outline helps ensure that you write a narrative helpful to an appellate audience that is hearing your client’s story for the first time. But remember this is not the place to argue the story. Save characterizations of the events, assessments of witness credibility, and legal claims for the Argument section. The challenge is to tell a story that starts to condition the court to rule in your client’s favor without leaping into the legal argument. Keep your focus on a spirit of justice. You must convince the appellate judges early on that ruling in favor of your client would be just, and to rule against her would be unjust. Because at the end of the day, judges strive for justice.
A. Make the Story Clear; Seek the Heart of the Matter
Strive hard for clear writing. Write with conviction. “All the careful strategy in the world will be of no assistance to you unless you write clearly and forcefully. And, clarity and power are above all the fruit of simplicity.” Remove extraneous facts. But leave in all those facts necessary for persons unfamiliar with the story—the appellate judges and their clerks—to be able to follow it. Judge Wiener suggests that you “impose on someone—a spouse, a grown child, a secretary, a colleague, a friend—to read through your fact statement and tell you what the case is about and ask you ‘fill-in’ questions.” Then revise the story to answer those questions, so that the story is complete and self-contained.
Remember the importance of conveying a theme or moral. Organization is key. Facts should be organized in a manner that rings out a clear theme without your having to spell the theme out. Whether you write a chronological or topical narrative, you should begin with a succinct summary of the procedural and legal context. From the start of the story, focus on clearly communicating why you are in court seeking justice for your client. Help the judge by pushing aside complicated, detailed record facts that are set out in the appendix and may be referenced later. “[E]ven those numerous, complex facts must be related in a narrative that is distilled to the most succinct and unadorned rendition practicable.”
Make the story visually appealing. Identify topics that can form the basis for headings. Providing such guideposts will enhance clarity. Whether or not you present those topics in chronological order, the judge will appreciate your organization and will infer that you carefully thought through the facts most salient to a review of the issues. A thoughtful advocate is highly regarded.
The advocate who writes with an affirmative tone is also viewed favorably. Do not harshly criticize the opposition. If, for example, the opposition misstates the record facts, show the judge the misstatement. The judge will reach his or her own conclusions. Taking the high road in telling your client’s story is generally much more effective in garnering the judge’s interest and respect.
Play these notes for a clear story:
Compose a complete narrative for new readers
Compose topical headings to organize procedural and substantive facts
Count on a justice theme early
Count on an affirmative tone
Cut extraneous facts
B. Make the Story Crisp; Seek Conciseness in Prose
An appellate brief should be brief and concise. Be ruthless in cutting out words, phrases, paragraphs, and pages of your story. Judge Kaufman urges advocates to “[m]ake every word count; every sentence should take you a step closer to your goal. Do not tarry on interesting problems peripheral to the case: go to the heart with vigor and élan.”
The brief is not the place for flowery prose or for entertaining the reader. As Judge Wiener advises, “[U]se plain, crisp prose and avoid the use of hackneyed legal terms, stilted and archaic phrases, unnecessary Latin, and polysyllabic words.” Judge Kaufman put it more bluntly: “Edit fiercely; reduce your language to muscle and bone.” Justice Ruth Bader Ginsburg offers the tip not to fill all fifty pages allotted. She acknowledges some cases may be so complex that they require the full fifty pages but finds that most arguments could be written in twenty to thirty pages. “Lawyers somehow can’t give up the extra space, so they fill the brief unnecessarily, not realizing that eye-fatigue and even annoyance will be the response they get for writing an overlong brief.”
Writing an unnecessarily long story is also counterproductive. Verbose prose reduces the “persuasive edge” of the narrative. Avoid an overblown recitation of the facts. Also avoid a story with a succession of dates. Include only those dates that are significant for the appeal, such as statutes of limitations, discovery deadlines, pre-suit notice requirements, and other such time-sensitive issues. Do not clutter the story; keep it interesting. Using active rather than passive voice can help propel the story forward.
Conciseness is a virtue in brief writing. And it comes only from writing . . . and then rewriting, rewriting, and rewriting again. Not only is the judge apt to be annoyed by a long-winded brief, but may also infer that the lawyer’s thinking lacks precision. In the words of Justice Antonin Scalia: “If you see somebody who has written a sloppy brief, I’m inclined to think this person is a sloppy thinker. It is rare that a person thinks clearly, precisely, carefully and does not write that way.” Do not, however, sacrifice clarity for conciseness. While brevity is admirable, your first priority is to clearly convey your theme of justice.
Play these notes for a crisp story:
Compose outline, draft, rewrite, rewrite & rewrite again
Compose with simple, concrete words
Count on every word to matter
Count on active voice
Cut unnecessary dates
Cut unnecessary Latin words
C. Make the Story Captivating; Seek a Spirit of Justice
Seek hard to write a captivating story. To keep an appellate judge focused, you must write an interesting story that conveys your theme. Chief Justice John G. Roberts, Jr., states: “It’s got to be a good story. Every lawsuit is a story. I don’t care if it’s about a dry contract interpretation; you’ve got two people who want to accomplish something, and they’re coming together—that’s a story.” Justice Roberts also suggests incorporating a “couple of hooks” in the story to pique interest, even if they do not have that much to do with the substantive legal issues.
Judges are overwhelmed with dry briefs; thus, a great story is a perfect panacea for boredom. You need to elevate your client’s story above all else. In a captivating story, it is “difficult to separate the teller from the story.” Draw in the judge by your riveting tale. In the words of Judge Kaufman, “The facts generate the force that impels the judge’s will in your direction. Particularly in complex situations it is vital to make the facts sing out as clearly and simply as possible.”
Your audience is not a passive recipient of the sung facts. By virtue of his experience, the judge will be constantly evaluating the narrative, using both inductive and deductive reasoning to reach preliminary conclusions. The skillful appellate advocate writes such a captivating story that the judge will be agreeing with him
or her by the end of it, before even reaching the brief’s Argument section. The well-written story draws in the judge through its persuasive, common-sense approach to justice.
While you want to persuade, you must also be fair. Not only must you accurately state the facts, but you must also include significant facts bearing upon issues that are unfavorable to your client. Omitting unfavorable facts will only imply to the court that you realize and fear that you will lose the case if all the facts are on the table—your job is to convince the court that your client ought to prevail irrespective of any “bad” facts.
Artfully emphasizing “good” facts and downplaying “bad” facts can strengthen your client’s story. Positions of emphasis align with certain physical locations in a brief. The judge is apt to pay more attention to facts that appear before or after a mental or physical break in your Statement of Facts. Thus, emphasize “good” facts by placing them in positions of emphasis or through creating subheadings or paragraph breaks. Correspondingly, de-emphasize “bad” facts by moving them away from white space and natural breaks. Exploiting positions of emphasis can make your client’s story more persuasive.
Persuasion can be enhanced through use of selective record excerpts. Sometimes short quotations can have a more captivating appeal than paraphrasing. These excerpts can help paint a picture for the court, one deftly designed to cast your client in a positive light. “As in a literary story, quotations from witnesses can be effective, because they make the characters come alive. We hear their pleas.” Do not, however, give in to the temptation to “embellish or to throw in irrelevant but juicy facts to liven up the plot. Stick to the essentials.” Also resist direct criticism of your opponents. “A lawsuit should be a clash of ideas, not personalities.” Of course, you can—and should—inform the court when your opponent’s characterization of the story is lacking. When you do so, however, “attack the position, not the person.” Write to let the story’s truth sing out justice for your client.
Play these notes for a captivating story:
Compose singing facts
Compose with colorful pictures
Count on hooks
Count on positions of emphasis
Cut inflammatory rhetoric
Cut criticisms of opponent
The Statement of Facts is arguably the most critical section of an appellate brief. A persuasive client story greatly enhances chances of success on appeal. To write such a narrative, the attorney must first wear the client’s shoes, beginning with the initial interview. Active listening and demonstrating empathy are cornerstones of client-centered counseling that permit the attorney to fully hear the client’s story. This legal model also permits the attorney to be the client’s voice and retell the client’s story accurately at trial.
If the client loses and appeals, the attorney must then jump into the appellate judge’s shoes. From this vantage point, the attorney is better equipped to write a compelling narrative for an audience that knows nothing about the client. The attorney will know to grab the judge’s attention early with an interesting story. The narrative must sing out a strong theme of correcting an injustice imposed on the client in the court below. Not only must the narrative be consistent with the appropriate standard of review and court rules but it must also be an eloquent tale. It should be a clear, crisp, and captivating ballad. A clear story focuses on the heart of the legal matter; a crisp story maintains momentum and the judge’s interest; and a captivating story impels the judge to “do justice” for the client.
Attorneys can only write such ballads, however, with proper practical skills training. Legal education should focus less on the rules and more on the people. Law students and junior attorneys alike need more client counseling, appellate advocacy, and brief-writing skills to prepare them for competent lawyering. These skills are required for wearing the client’s and appellate judge’s shoes. A snug fit of both pairs of shoes can enable the attorney to sing the client’s ballad persuasively in the Statement of Facts, producing a just result. This music makes everyone—the judge, the attorney, and the client—winners in the game of appellate musical shoes.
* Clinical Assistant Professor, the Columbus School of Law of The Catholic University of America. I would like to extend special thanks to Dean Veryl V. Miles, Dean of The Columbus School of Law of The Catholic University of America, for providing a generous summer research and writing stipend which supported my work.
When a lawyer resorts to a jury argument on appeal, you can just see the judges sit back and give a big sigh of relief. We understand that you have to say all these things to keep your client happy, but we also understand that you know, and we know, and you know we know, that your case doesn’t amount to a hill of beans, so we can go back there in the conference room and flush it with an unpublished disposition.
Alex Kozinski, The Wrong Stuff, 1992 BYU L. Rev. 325, 333.
The moral of the story is the theme of your case, and it should be able to be stated in a single sentence no matter how long it takes you to boil the case down to a single sentence theme. As with most good stories, the reader (the court) should be pulled into it so that they care what happens to the main character (your client) and are eager to know what happens next until they get to the end of the story.
Id. Indeed, the value of a strong moral theme is a concept at least as old as Aristotle’s Rhetoric. As one scholar has observed:[T]o Aristotle, logical argument . . . is less about logic per se and less about form than about knowing and connecting with the audience. To Aristotle, logical arguments are persuasive not because of something inherently true about logic, but rather because the audience values and responds to logical arguments. . . . What’s more, not just any logical arguments will do; the premises for the arguments must be drawn from the experience and values of the audience.
Steven D. Jamar, Aristotle Teaches Persuasion: The Psychic Connection, 8 Scribes J. Legal Writing 61, 62 (2002) (emphasis added).
Robert J. Martineau et al., Appellate Practice and Procedure 824 (2d ed. 2005).
Aldisert, supra note 5, at 152–53.
Bryan A. Garner, Interviews with United States Supreme Court Justices: Chief Justice John G. Roberts Jr., 13 Scribes J. Legal Writing 5, 35 (2010).
First, the story must have a strong opening. The reader is most attentive at the beginning of the brief and the opening sets the tone . . . . [It] is the place to grab the reader’s attention and make the reader want to continue reading. Second, to write a good story, avoid irrelevant or random facts—just because something is true does not make it relevant to the matter before the court. . . . [I]ncluding wholly irrelevant information can interrupt narrative flow and make a statement of facts seem garbled and disjointed. Third, the facts argue the case. Thus, the recitation of facts should naturally lead to the conclusion the brief advocates.
Pregerson & Painter-Thorne, supra note 52, at 225.
Federal Rule of Appellate Procedure 28 and our corresponding Circuit Rules . . . clearly outline the mandatory components of a brief on appeal. These rules exist for good reason. “In order to give fair consideration to those who call upon us for justice, we must insist that parties not clog the system by presenting us with a slubby mass of words rather than a true brief.”
Sekiya v. Gates, 508 F.3d 1198, 1200 (9th Cir. 2007) (quoting N/S Corp. v. Liberty Mut. Ins. Co., 127 F.3d 1145, 1146 (9th Cir. 1997)).
(1) [T]he filing of the complaint, whether in state or federal court; (2) the removal of the case to federal court, if applicable; (3) the filing of a motion to remand to state court, if applicable; (4) a general statement regarding whether discovery was conducted; (5) the filing of all dispositive motions such as motions to dismiss, motions for summary judgment, and motions for entry of judgment as a matter of law; (6) the filing of any orders and any accompanying memorandum opinions filed by the district court in response to any dispositive motions; (7) the entry of final judgment; (8) the filing of any post-trial or post-judgment motions and the district court’s rulings on these motions; (9) the filing of any notice of appeal; and (10) the filing of any motion to stay the effect of the district court’s entry of final judgment pending appeal and the district court’s ruling on these motions. Furthermore, unless any of the following items are relevant to the issues on appeal, an appellant should not include: (1) the filing of an answer; (2) the details of discovery proceedings, including discovery motions and the district court’s rulings on these motions; and (3) motions to continue and the district court’s rulings on these motions. In sum, after reading the appellant’s statement of the case, the appellate court should have a clear picture of the case’s procedural history.
Hamilton, supra note 11, at 584.
At about 11:00 p.m., I was reading an appellant’s brief, slowly but surely coming to believe we would have to reverse the judgment. Then I turned to the appellee’s brief, which was replete with quotations from the record and the relevant cases—no paraphrasing or ellipses to mistrust—and it began to become apparent that the appellant’s lawyer had misrepresented the record and the applicable law. At that moment, the appellant’s lawyer not only lost the case, but he also lost me to anger.
Duncan, supra note 57, at 1101.
Usually we do not comment on technical and grammatical errors, because anyone can make such an occasional mistake, but here the miscues are so egregious and obvious that an average fourth grader would have avoided most of them. For example, the word “principals” should have been “principles.” The word “vacatur” is misspelled. The subject and verb are not in agreement in one of the sentences, which has a singular subject (“incompetence”) and a plural verb (“are”). Magistrate Judge Stickney is referred to as “it” instead of “he” and is called a “magistrate” instead of a “magistrate judge.” And finally, the sentence containing the word “incompetence” makes no sense as a matter of standard English prose, so it is not reasonably possible to understand the thought, if any, that is being conveyed. It is ironic that the term “incompetence” is used here, because the only thing that is incompetent is the passage itself.
Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., No. 10-10325, 2011 WL 2698975, at *13 n.13 (5th Cir. July 13, 2011).
There is a compelling need to change legal education in the United States in significant ways. . . . [and w]hile law schools help students acquire some of the essential skills and knowledge required for law practice . . . [i]t is generally conceded that most law school graduates are not as prepared for law practice as they could be and should be. Law schools can do much better.
Id. at 7; see also Am. Bar Ass’n, Section of Legal Education and Admissions to the Bar, Report of The Task Force on Law Schools and the Profession: Narrowing the Gap 4–7 (1992) (criticizing the American legal education system and urging a more practice-oriented rather than theory-oriented model).
J. Kim Wright, Lawyers as Peacemakers: Practicing Holistic, Problem-Solving Law 175 (2010).
Law school also never burdened you with a true understanding of the word “discovery.” That word does not mean 3,000 pages of documents that you can read, understand, and inquire about intelligently at depositions and trial. . . . “[D]iscovery” means documents beyond human comprehension. At our firm, a case with only 2 million pages of documents is a small case; big cases involve tens—or hundreds—of millions of pages of information. The information is so vast that we could never read it all in a lifetime. . . . We run word searches . . . of our databases and hope we find the important stuff. . . . [N]either we nor the jury could ever comprehend the true meaning and interrelationship of all the facts.
Herrmann, supra note 120, at 35.
Hamilton, supra note 11, at 586.
It’s not easy [to achieve clarity], because the trouble is often you know too much about it by the time you’ve gotten into the subject, and so you assume a lot of knowledge on the part of the reader, and the reader might not have that knowledge. . . . [M]ake an effort and think [as if] you’re explaining it to your spouse, your wife, your husband, your daughter, your son. . . . Go through the explanation so that they can understand it, and then the reader will understand it. That’s why for me it requires a lot of drafts.
Garner, supra note 59, at 155.
Pregerson, supra note 63, at 434.
The writer of history, I believe, has a number of duties vis-à-vis the reader, if he wants to keep him reading. The first is to distill. He must do the preliminary work for the reader, assemble the information, make sense of it, select the essential, discard the irrelevant—above all, discard the irrelevant—and put the rest together so that it forms a developing dramatic narrative. Narrative, it has been said, is the lifeblood of history. To offer a mass of undigested facts, of names not identified and places not located, is of no use to the reader and is simple laziness on the part of the author. . . . To discard the unnecessary requires courage and also extra work, as exemplified by Pascal’s effort to explain an idea to a friend in a letter which rambled on for pages and ended, “I am sorry to have wearied you with so long a letter but I did not have time to write a short one.”
Id. (citations omitted).
One day, when the sailors took shore leave, the first mate returned to the ship drunk. The Captain recorded this event, noting, “The first mate was drunk today” in the Captain’s log. The first mate has the responsibility for keeping the log when the Captain is off duty, so he soon saw the note. He was furious; he had never been drunk before, he had been off duty when he was drunk, and he was one of a dozen drunken sailors, none of whose drunkenness was recorded in the log. He decided to retaliate. He knew he couldn’t lie about the Captain, for the Captain would be seeing the log the very next day. So he wrote the simple truth: “The Captain was sober today.”
Id. This is an example of understated advocacy. By just reading this log and not knowing all the details, the reader will most likely jump to the conclusion that the Captain is usually drunk, as it was worth recording his soberness.
Garner, supra note 59, at 137.