Appellate Insights

In appeals, selecting the right tone is as essential as selecting appellate issues.  It is a given that every appellate brief must be calm and respectful.  But persuading the court of appeal also depends on matching the tone of your brief to the needs of your case.  Some considerations:

• Because justices are people, rules-based reasoning alone is often not enough.  Combine reasoning with storytelling that highlights the equitable core of your case to persuade the reader that your view of the law is the correct one.  But a jury-argument tone is never appropriate.

• In some appeals, a scholarly approach is best.  Focus on public policy derived from various sources and tie together disparate areas of the law, catering to appellate justices’ natural inclination to make the law sensible in broad and generally applicable ways.

• Other times, the most effective strategy might be to tether your argument tightly to the trial court proceedings.  An appellant can use the trial court’s steps and words to expose error.  And a respondent can lean on the appellate court’s sensitivity to trial management decisions and the presumptions that give trial judges the benefit of the doubt.

► The practical message.  Be intentional.  Alongside developing the structure and content of the brief, devote time to deciding the most advantageous tone for the particular case.