Many motions are lost, and the court's order makes it very difficult to appeal. If you follow these five simple steps, you will have a better chance of reversing an adverse decision or sustaining your hard earned victory in the trial court.
State Your Conclusion and Legal Standard Up Front
One of the most common problems faced on appeal is when the reviewing court has the impression the trial court was not clearly presented with the issues now on appeal. Appellate courts hesistate to fault a trial court that faced an unclear question. Equally troubling is when the trial court was not presented with a clear and accurate statement of the standard for its decision. The issue and the standard should be stated in as few words as possible right at the start, perhaps in a preliminary statement so the court will know what you are arguing from the beginning.
Clarify Whether Your Argument is Factual or Legal
Appellate courts face a huge volume of work and are entitled to know whether your argument is on the law or the facts, If you waffle between law and fact, it may send a message that you don't really know how the trial court erred. If the argument is legal, hammer home the result relies on facts that are not indispute. If the argument factual, hammer home that the law is not in dispute.
Use All Your Evidence, Particularly on Summary Judgment
A common shortcoming of motion records is when parties rely on deposition testimony and documents produced but do not include fresh client or witness affidavits which may clarify deposition testimony, or be directly tailored to the issues that will end up on review, That witness who was not deposed may now provide a strong perspective, beyond challenge on a motion. Particularly defendants who must demonstrate issues of fact for jury determination often fail to take the extra step of offering their affidavit with language tightly focused on the disputed issues. Likewise, movants often fail to include expert testimony which can sway the court merely because of the effort shown, which lends credibility to the argument. Finally, make sure you know what your jurisdictions' rule is on avoiding summary judgment by using hearsay, even from third parties, as that may create a jury issue if only to determine admissabiity. Never leave your record short should you have to rely on it for appeal.
If a Legal Authority Is Worth Using, It is Probably Worth Quoting
Appellate courts dislike long string cites on key issues, since a holding is often tied to the facts of that particular case, and may only apply in narrow circumstances. As you read authorities you may want to rely on, imagine how they will fit into your argument and, when you get to the strong language in the decision, highlight it and then put it in an indented quote so the court see just why it carries so much weight. If you cannot do that, it probably carries little weight and may be omitted.
Keep it Simple and Direct
I have always taught young attorneys that every word in a brief always does one of two things, they either move you closer to victory or closer to defeat. Therefore, every extra word increases your chance of losing. Brevity is a show a strength. It is a hallmark of clarity and confidence. Disciplining yourself to be brief forces you to admit whether you really understand your point, whether it is really supported with admissible evidence, and whether it holds water. Keep revising until you can be brief.
Additional resources provided by the author
I have relied heavily on two sources, the first of which is out of print but available on Amazon.
Peck, Girvan, "Writing Persuasive Briefs"
Aldisert, Ruggero, "Winning on Appeal : Better Briefs and Better Oral Argument"
Our Rating is calculated using information the lawyer has included on
their profile in addition to the information we collect from state
bar associations and other organizations that license legal
professionals. Attorneys who claim their profiles and provide Avvo
with more information tend to have a higher rating than those who do
What determines Avvo Rating?Experience & background
Years licensed, work experience, education
Legal community recognition
Peer endorsements, associations, awards
Legal thought leadership
Publications, speaking engagements
This lawyer was disciplined by a state licensing authority in .
Disciplinary information may not be comprehensive, or updated. We recommend that you always check a lawyer's disciplinary status with their respective state bar association before hiring them.