Appellate Insights

Feb 08, 2018 Laurie J. Hepler
Think Like The Reader

Appellate justices and staff attorneys who don’t know your case will have to decide it.  Make it easier for them: step outside your box and consider the case from their perspective.

You know your facts and issues.  The case interests you, and since you’re prosecuting or defending an appeal, the stakes are high.  But from where your appellate panel sits, your case is one of hundreds they decide each year — about half of which are criminal.  They’re generalists, and they have no stake in the outcome.  What’s more, they are total strangers, knowing only what the parties tell them in a cold record, a few briefs, and one hearing.

All this puts a high premium on “translation” of the trial-court case for a new audience:

  • What?  Your first 2-3 paragraphs should convey the core of your appeal (or response) to an uninvolved person.
  • Why?  You get a couple more paragraphs to make the reader care whether you win or lose.   As one justice told me: “I’ve never read a brief I couldn’t put down.  But I keep hoping.”
  • How?  Then, strive in the first few pages to summarize all the key principles that require your result.  No wandering—or your court readers will sigh and reach for the coffee.

►  The practical message:   Hold firmly in mind the perspective of a busy newcomer who must grasp your case quickly, and you have a much greater shot at engaging and persuading that reader.