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 oflecture, 10 minutes for questions
I.
The A{![!ellate Brief
A.
B.
n.
Before Writing the B:ri~f
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B.
C.
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F.
III.
The most important element of the appeal.
The goal: persuading judges to reach the desired result.
Consider using appellate counsel for objectivity and an
appellate perspective.
Carefully review the record on appeal to identify viable issues.
In general, en-ors must be prese1·ved~ have a prejudicial impact.
Do not advance every conceivable argument> only strong ones.
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.
Do an outline.
Statement of Facts
A.
Often the most important section of the brief.
B.
C.
Strive for the ABC's: accuracy, brevity, and clarity.
Generally, it works best to provide a cJ:u·onological narrative of
facts needed for background and for support ofyour argument.
This section should be easy to understand and compelling.
D.
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E.
F.
G.
H.
L
J.
IV.
A1·gument
A.
B.
C.
D.
E.
F.
G.
H.
V.
While the Statement of Facts should not be argumentative} it is
a piece of advocacy: carefully choose the facts to present and to
emphasize.
Be honest: reveal bad facts} but find a way to mitigate them.
Decide on a simple way to characterize the patties, and use the
labels consistently throughout, such as "husband,, and "wife*' or
('landlord" and Htenanf1 or ((the People" and "the defendant."
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.
Cite to the record for every sentence.
If you are using the appendix method, create the appendix and
insert the new page references.
Usually the strongest point should come fi1·st
Set forth controlling authority.
Choose key, favorable cases; analogize them to your case.
Distinguish important adverse cases.
Limit the use of string cites, block quotes, and repetitive facts.
Generally, do not add any new facts,
Especially in a high court} make policy arguments.
In the conclusion section, set forth the relief sought.
Editing
A.
B.
C.
D.
E.
F.
G.
H.
If practicable, set aside your draft for several days to have a
fresh view for editing.
Turn the raw draft into a polished, refined product that will
persuade and delight busy and skeptical, busy judges.
Bl'eak up paragraphs into manageable blocks.
Make the opening of each paragraph the topic sentence and the
last sentence a transitional one.
Break up long sentences into shorter statements.
Use the active voice and plain, but precise language.
No matter how complex the material, achieve clarity.
Add subheads to serve as sign posts.
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VI.
Respondent's and Reply Briefs
A.
B.
C.
D.
E.
F.
A respondent's brief should stand alone as an affirmative
statement of why the challenged decision should be affirmed.
If the lower corut result is right, but the reasoning is arguably
wrong} consider advancing an alternate ground for affh·mance.
A respondent should feel free to reframe issues, not merely
defensively counter appellant's points.
Disclose adverse controlling authority missed by appellant
Study cases cited by appellant; distinguish ones that matter.
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
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B.
C.
D.
E.
F.
G.
H.
Preliminary Statement- Should you include one? Should it provide
only jurisdictional facts? Should it encapsulate the case and your
arguments?
Questions Presented -They should be sufficiently 11eutral to be
credible, but framed to capture your· argument and standard of
appellate review.
Summary of Argument- Required in federal appeals, but may be
helpful as a roadmap in complex appeals in state comts.
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,
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?
Bluebook vs. NY Repmts Style Manual.
Parallel Cites- Generally) cite to officialtepmts only. When a case
is unreported, should you cite to Westlaw or LEXIS or both?
Websites- Beware.
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