Persuasive Strategies for Appellate Brief-Writing

Convince yourself by making a candid, honest argument that arises naturally from your client's facts and that is grounded in thorough research and analysis.

It's important to make the shift from stating the analysis objectively (putting yourself in the shoes of the decision-maker) to making an assertive argument. Similarly, attorneys too often get caught up in the defensive trap of merely responding to anticipated (or real) arguments of their opponents. Be sure to always state your own position and supporting argument before distinguishing or refuting your opponent's take on the issue.

Headings and thesis sentences that use neutral or defensive wording do not convince the reader of the strength of your position. Compare:

*Neutral/Defensive*	*Assertive*
The first step of the Court's analysis will be to determine whether the defendants took reasonable precautions to prevent inadvertent disclosure.	Defendants took reasonable precautions against inadvertent disclosure by identifying, labeling, and isolating the privileged material.
The court considers the number of disclosures when evaluating the privilege applied to a disclosed document. Many of the cases involve a small number of inadvertently disclosed documents out of thousands of documents reviewed. The small number of disclosed privileged documents does not excuse the disclosing party, however.	Defendants waived the attorney/client privilege even though only one document was disclosed. The ratio of error is critical. Only where there is a small ratio between the number of documents reviewed and the number of inadvertent disclosures will a court find that screening procedures were inadequate. [citation]
Counsel for the Plaintiff argues that Defendants allowed too much time to elapse before they notified him of the erroneous transmission. Defendants, however, notified the Plaintiff as soon as they discovered the misdirected fax.	Defendants' prompt notice to Plaintiff on the very day they learned of the accidental transmission weighs in favor of granting the motion, as it was impossible for Defendants to correct an error they had not yet discovered.

Take advantage of every opportunity to persuade.

State your assertion not only in the argumentative heading, but also incorporate it into the first sentence in the text beneath that heading (but don't delve deeper into the facts at this point). Go directly from this assertion into your supporting case law or statutes. Describe specific authorities in terms of the issue that you're addressing. Focus on case outcomes that will shape the court's decision in your favor. Compare:

*Non-persuasive heading followed by rule statement*	*Assertive heading followed by assertive thesis sentence, then rule statement*
Defendants' counsel allowed complete disclosure of the "King Memo." Courts have found that when disclosure is complete, a court order cannot restore confidentiality and, at best, can only attempt to restrain further erosion. [citation]	Defendants' complete disclosure of the "King Memo" destroyed its status as a privileged document. Because the Yooler Law Firm now knows the full contents of the King Memo, its confidentiality is irretrievably lost. In a case where the opponent learned the "essence of the document's contents," the court ruled that its confidentiality could not be restored. [citation]
Waiver of the attorney-client privilege failed to occur because the interests of justice would best be served by not allowing opposing counsel to keep the privileged document. In determining the overriding interests of justice of inadvertent disclosure, the Court should look at fairness issues involving both Plaintiff and Defendant as well as the circumstance surrounding the disclosure. [citation] In [case name] the court looked to whether a party had relied on an inadvertently produced document. The court determined that since the party had not shown the document to witnesses or experts that fairness issues were not in favor of either party. [citation]	The overriding interests of justice weigh in favor of the protective order, as waiver would give the Plaintiff an unfair advantage based on Defendants' single mistake. A protective order will assure Captain King that he can communicate with his attorneys in confidence. Questions of waiver are never decided simply on the basis of relevance and probative value. [citation] A court also weighs the policy behind the privilege. "If that attorney-client privilege is to serve its purpose of fostering attorney-client communication, then documents inadvertently produced should not lose their privileged status without some substantial reason." [citation]

When you represent an appellee, you find yourself in a defensive posture, even though you won in the lower court. Your jobs on appeal are (1) to show the appellate court why the result in the trial court was correct; and (2) to respond to and rebut the appellant's arguments (or in the case of RWA, to anticipate and respond to what you think the appellant will argue). Your appellee's brief should not achieve the dubious distinction of snatching defeat from the jaws of victory.

"The appellee is defending the rightness of the judgment below. He or she has the benefit of rules that insulate that judgment from reversal unless--according to the issue--it was clearly, or harmfully, wrong. The appellee will, therefore, cast issues in terms of deference." Michael E. Tigar, Federal Appeals: Jurisdiction and Practice 352 (2d ed. 1993).

"In all but the exceptional case, the respondent sits in the driver's seat, enjoying the protective cloak of a practical (if not legal) presumption of correctness; the reviewing court does not want to reverse, and will bend over backwards to affirm the result below." Marshall Houts & Walter Rogosheske, Appeals 24.01 (Matthew Bender 1995).

When you represent the appellee, remember that "[i]t is your adversary and not you who has the burden of proving that the judgment should be disturbed." Ruggero J. Aldisert, Winning on Appeal 244 (NITA rev. ed. 1996).

The general answer is "no": You must remember that the trial court ruled in your favor. If the appellant has not raised an issue that was decided in your favor, it is generally waived.

The answer is "yes" in two far more rare situations: (1) You are not only the appellee, but are also cross-appealing issues that were not decided in your favor, and that resulted in a ruling harmful to your client; or (2) the appellant so blatantly misunderstands the case and misstates the issues that justice demands you set matters straight. For both of these situations, however, be absolutely sure that you will help your position on appeal, not hurt it, by raising different issues.

The answer is "yes" only when the appellant has deviated substantially from the logical and necessary order in which the issues must be analyzed. In such a situation, it is critically important that the appellee's issue statements are worded to indicate the appropriate order, and in your Summary of the Argument, it is equally important to explain why you've undertaken this reorganization.

Confronting the Appellant's Arguments and Authorities: More Good Advice from the Experts

"Don't engage in unanchored accusations or swipes at your opponent's word-product; if you have a gripe, tie it to a specific mistake or miscite. Examples of 'no-nos' taken from a recent brief include general allegations that the author's opponent 'misstates issues and arguments . . .,' 'made selective and incomplete statements about the evidence,' 'distorted the causation issue.' Judges' eyes glaze over as we read that kind of prose." Patricia M. Wald, 19 Tips from 19 Years on the Appellate Bench, 1 J. App. Prac. & Process 7, 21-22 (1999).

"As with most things in life, you win points by being on the offensive, and staying there. You do not score points from a defensive posture. Perhaps the greatest mistake most respondents' briefs make is to take the 'refutatory' stance only: The brief writer does nothing but run down the points of appellant's argument, saying 'No! No! No! No!' He lets the appellant back him into a defensive corner, and weakly (even apologetically) responds negatively." Marshall Houts & Walter Rogosheske, Appeals 24.02 (Matthew Bender 1995).

From Houts and Rogosheske's book: A Checklist of Affirmative Premises
(1)	The record supports the conclusion that justice was done in the lower court, which means that the record does not show the errors the appellant complains of.
(2)	The jury (judge) found the facts correctly, which means that the appellant is not laying fair with the facts in his brief: He neither presents them completely nor interprets them in the light most favorable to respondents.
(3)	Every emotional, "people" issue was correctly resolved in the trial court in respondent's favor, which means that the appellate court will not upset the "facts."
(4)	The result in the trial court makes for good law, easily applied to this and future cases.
(5)	All "jugular" issues were handled correctly; and even though some technical error may have crept in, it was harmless and does not warrant reversal.
(6)	The trial judge accurately stated the law, and the jury correctly applied it to the facts, so no review for correctness can be worthy of consideration.
(7)	The decision in the trial court is harmonious with those of other trial courts.
(8)	The facts of this case fit easily into rules of established law, so a review to fill a gap in the law is not needed.
(9)	All issues timely raised in the trial court were correctly handled, which means that appellant's brief injects unfairness into this appeal by raising a new issue not argued or properly presented to the trial court.
(10)	The respondent, in support of the lower court, is accurately stating and interpreting the controlling cases, which means that appellant is misreading and misstating them.
(11)	The respondent has always boldly stated and discussed the controlling cases, which appellant hides by omitting them entirely, or by burying them in a footnote.
(12)	Respondent can easily distinguish the facts of this case from those of the key cases on which appellant relies for reversal.

*Michael Tigar has a few more bases for urging affirmance of the trial court's judgment, from his book, Federal Appeals: Jurisdiction and Practice:*
(13)	The alleged error has not significantly impaired the appellant's rights, i.e., it is harmless error.
(14)	Appellant's failure to object to the alleged error means that the issue is waived, as it does not rise to the level of fundamental error.
(15)	In addition to the reasoning used by the trial court, alternative grounds exist to support its judgment.

Finally, no matter which side you represent, always remember that the most effective forms of persuasion are invisible to the reader.

Call it the "used car salesman" effect. As soon as we get a sense that someone is urgently trying to sell us something, we put up our shields. We're skeptical; we're resistant.

The same is true for persuasive writing. Even little things can work against a brief's subtle effect. Take advantage of the experts' advice set out above. Your goal is for the reader-judge to feel that your brief confirms her sense of the right outcome.

*Tentative language*	*Assertive language*
Defendants would argue that the Gray balancing test is the approach favored by the Eighth Circuit.	The Gray balancing test is the approach favored by the Eighth Circuit.
In the case at hand, 1 document out of 8000 does not seem to be an extraordinary mistake, and definitely less than the mistake made in Lois.	The Lois court's reasoning--that inadvertently disclosing 22 documents out of 3000 reviewed was not waiver--applies with even greater force here, where Defendants accidentally transmitted only one privileged document out of 8000 reviewed.