July 16, 2014 – In this video, Wisconsin Court of Appeals judges Joan F. Kessler, Milwaukee, and Gary E. Sherman, Madison, offer appellate brief writing tips lawyers can use to effectively make their case to the court of appeals.
Be logical and clear. Use short sentences, short paragraphs.
Be sure sentences follow logically.
When the judge isn’t sure what you are trying to say you erect a barrier against your own advocacy and are working against your client.
Clearly and succinctly recite the history, facts, and issues in the preliminary matters. The key is to be “brief” in this part of the brief, and spell out clearly what the judge is going to be dealing with in this appeal.
The argument is what really counts. Be scrupulous about the accuracy of the cases that you are citing, and if they don’t’ actually say quite what you want them to say, explain what the difference is so the judges doesn’t get the feeling he or she is being mislead.
Decide from the beginning what are the most important and persuasive arguments that have the best opportunity to win. It is rare that a trial judge mishandles so many issues so badly that each of them is a basis for reversal. The quantity of arguments will diminish the impact of those arguments with the quality.
Be sure to include the specific order of appeal, the trial court’s explanation in the record (if there was one), and the trial court’s explanation for the reasons (if there was one). However, including nearly the entire record in the appendices does not really help the judge.
Judges don’t like scavenger hunts. If a contract is the nature of the dispute, set it out as the first document, and name it as such. Don’t make the judge search your appendices only to find the document at issue is attached to an affidavit as an exhibit.
About the Presentation
Judges Kessler and Sherman presented Views From the Bench: Appellate Judges Panel at the State Bar of Wisconsin PINNACLE® Litigation, Dispute Resolution, and Appellate Practice Institute in Milwaukee on May 22-23.
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