I recently made a presentation on Missouri appellate practice for the general practitioner at a CLE program sponsored by the Solo and Small Firm Practitioner Section of the Bar Association of Metropolitan St. Louis. This guide provides a summary of my tips on writing a persuasive appellate brief.

Develop a Compelling Theme: An appellate brief must do more than just articulate reasons for how the trial court did or did not err. You must present an overriding and compelling theme on why justice would be served if your client wins the appeal.

Present the Facts Fairly and Accurately: You should always try to present the facts fairly and accurately. You want to create a favorable impression with unassailable facts from the record. But do not try to oversell your point with unprovable adjectives and adverbs. And do not get bogged down in unecessary details or irrelevant dates.

Be Selective in Identifying the Issues for Appeal: The appellate lawyer’s ability to identify winnable issues is critical to the success of any appeal. You never want to take a “shotgun" approach. Instead, you should be selective and present only those issues on which you have a reasonable chance of winning.

Frame the Issues Favorably to Your Client’s Position: Without being argumentative, you should try to frame each issue favorably to your client’s position. When working under the Missouri Rules, you must use a “full disclosure" method of identifying “points relief on." The point must be presented in substantially the following format: “The trial court erred in [identify the challenged ruling or action] because [state the legal basis for the claim of reversible error] in that [explain why the legal reasons, in the context of the case, support the claim of reversible error]." [1]

Define the Standard of Review and Apply that Standard to Each Issue: The Missouri Rules require that your argument “include a concise statement of the applicable standard of review for each claim of error." [2] The standard of review is critical to the ultimate success or failure of your appeal. You need to explain in your argument why your client should win under the applicable standard of review for each issue.

Avoid Common Research Mistakes: The most important point to emphasize in legal research is to look beyond the headnote or legal proposition for which you are citing a case. Make certain that the ultimate result is favorable to your client’s position. If the result is bad, then go find another case for the same legal proposition.

Structure Your Arguments to Answer the Judges’ Questions: When I teach moot court students, I encourage the students to use Ross Guberman’s approach to structuring the argument section of their briefs. Under the Guberman approach, you match your structure to the judges’ questions, not your authority. Guberman places great emphasis upon the proper use of topic sentences. Make sure that the topic sentence of every paragraph, if true, helps you win. And make sure that the topic sentences, in sequence, create a cogent argument. [3]

Try to Use a Synthesized Approach to Presenting Cases: If you have multiple cases that stand for more or less the same proposition, you begin with that holding. You can follow by citing the individual cases separated parenthetically with a brief explanation of how the rule was applied in different factual settings. And then you synthesize the cases by emphasizing the overriding principle or rule. This approach shows the weight of your authority and is far more persuasive than just going through a series of individual cases.

Keep it Simple: An appellate judge is forced to plod through countless briefs. You should not make the judge’s task more difficult by using convoluted sentences, long paragraphs, abstract sentence subjects, passive verbs, and arcane legal jargon. You want the main points and theme of your brief to come across in a cold first reading – because that first reading may be all you get. The modern trend of appellate advocacy is to make briefs simpler to read.

Additional Tips or Goals: Against the background of this discussion, I am providing the following list of ten additional tips or goals to improve your appellate briefs:

  1. Use short and simple sentences.

  2. Avoid long paragraphs that run longer than half the page.

  3. Minimize the use of lengthy block quotations.

  4. Avoid an excessive number of footnotes.

  5. Avoid words like, “clearly," “obviously," “plainly" and “patently." They add nothing of substance and they can be an irritant to the judges.

  6. In a similar vein, avoid bombastic words like “absurd" and “ridiculous."

  7. Define your terms early and be consistent. Most importantly, do not identify the same parties with different descriptions or names.

  8. Minimize the use of archaic legal terminology.

  9. Do not personally attack the methods or integrity of your opposing counsel.

  10. Have someone else proofread your document. It is very easy to overlook your own typographical errors and to read into the document what you meant to say.

DISCLAIMERS: This article contains general information for discussion purposes only. The author is not rendering legal advice, and this article does not create an attorney-client relationship. Each case is different and must be judged on its own merits. The choice of a lawyer is an important decision and should not be based solely upon advertisements.

[1] Mo. Sup. Ct. Rule 84.04(d)(1).

[2] Mo. Sup. Ct. Rule 84.04(e).

[3] See, R. Guberman,Point Made: How to Write Like the Nation’s Top Advocates (Oxford Univ. Press 2011).