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How to write a good appellant brief(七)

2016-03-07 11:15 纠错

The Perils of Overstatement

The lawyer, who is prominently affiliated with an elite East Coast institution, should have been careful to adopt a respectful tone toward the midwestern state judges he was addressing. We read the briefs before the case was argued. We concluded that, if the judges thought the issue otherwise close, human nature probably would make them want to rule against the defendant because of his lawyer‘s imperious tone. We are not mind readers, but we do know that the defendant lost on appeal by a 2-1 vote.

The brief of an appellee or respondent — the “bottomside” brief, in the jargon of appellate practice — has certain special features. The bottomside brief writer has the disadvantage of not being able to introduce the judges to the case and the issues; they will read the topside brief first. But there are advantages too. The party filing second has a target to shoot at: the appellant‘s brief. And, except in cases involving cross-appeals, the bottomside writer has prevailed below on all of the issues before the appellate court; that litigant has the advantages that flow from having already had one decisionmaker agree with its position. The bottomside party wins if the decision below was right on the merits or if appellate issues were not preserved below.

The first item on the checklist of the writer of the bottomside brief should be to ask: Was each of the arguments now being raised on appeal properly preserved below? Were alleged instructional errors properly objected to? Were the grounds now advanced for overturning evidentiary rulings the same ones offered in timely objections at trial? In a related vein, is the legal theory urged on appeal the same one presented to the trial court and, if not, is there an advantage to be gained from the change?

Appellate rules usually give the bottomside brief writer the option of dispensing with several of the features required in the topside brief. There is rarely a need to repeat or correct the predictable recitations of the basis for jurisdiction and the nature of the rulings below. On the other hand, it is usually worthwhile in a bottomside brief to reformulate the questions presented and write a competing statement of the case.

Some appellees seem to feel compelled to go further and to tell the court at the outset that the other side has misstated the questions presented and tendered a slanted version of the facts. That can be a bad idea. The court often will know from reading your questions presented and your statement that you believe the other side‘s version is either inaccurate or incomplete; you waste space and possibly goodwill by adding another sentence with an accusatory tone. However, if you can demonstrate flat out distortion, and it concerns something important, do so.

The other major difference between a bottomside and a topside brief is that the writer of a bottomside brief already knows exactly what arguments are being made on behalf of reversal. It is therefore appropriate and — because the appellee gets no reply — necessary to take on those arguments. This does not mean, however, that the brief should consist simply of a point-by-point refutation of each of the appellant‘s arguments. The aim of a bottomside brief is not just to debate the other side. There also must be an affirmative and coherent statement of the reasons why the decision being appealed is correct.

Having prevailed below can also have its burdensome features. Sometimes, to put it bluntly, the decision below is bad. It may be difficult to defend in whole or in part. The topside brief will have mercilessly laid bare its central defects. The bottomside brief writer then must offer other ways to reach the same result. Occasionally, it may be wise to abandon the lower tribunal‘s reasoning and substitute a different and better rationale. In essence, the appellee ends up defending, not the opinion that was written, but the opinion that should have been written.

Most times, however, it is prudent to defend the lower court‘s approach and offer, in addition, either something explicitly called an “alternative” approach or an embellishment on the decision below. Of course, there are times when defending the rationale of the decision below will be the only way to secure an affirmance. In cases coming from administrative agencies, for example, the appellate court is not allowed to adopt a rationale that was not the basis of the agency’s decision; similarly, a court reviewing a jury verdict may not affirm on a basis never presented to the jury.

A Better Rationale

The recent decision in TXO Production Corp. v. Alliance Resources Corp., 113 S. Ct. 2711 (1993), represents a triumph of the tactic of presenting a new and better rationale on appeal. The highest court of West Virginia had upheld an award of punitive damages that was many times the compensatory damages; the award was therefore greatly out of proportion to the actual harm suffered by the plaintiff. The state court had opined that the case implicated no federal constitutional limit on the size of the punitive damages on the dubious ground that the defendant had been “really mean.” The Supreme Court‘s grant of certiorari suggested likely dissatisfaction with the West Virginia court’s rationale.

Then respondent‘s counsel went to work, scouring the record and discovering a theory that, although it might have been barely hinted at before the jury, seemed more likely to persuade the nine Justices in Washington: The potential gain to the defendant from its alleged misdeeds much more closely approximated the punitive damages award than the amount tha t the plaintiff actually lost. Because counsel advanced this theory in the bottomside brief (and argument) and showed to the satisfaction of the necessary number of Justices that it had been preserved below, the West Virginia court’s judgment (but not its reasoning) was upheld.

Finally, what about reply briefs? They are optional, but it is the rare case — if any case at all — in which it makes sense to forgo the opportunity to file one. One of us once argued on behalf of the government a Supreme Court criminal case in which the petitioner simply did not bother to file a reply brief. The Court decided the case 5-4 in the government‘s favor, with the unusual coalition of Justices Brennan, Marshall, Scalia, and Kennedy dissenting. It would be easy to believe that the government’s sterling written and oral advocacy assured the result no matter what the other side did, but one must wonder whether an effective reply might have swayed one of the Justices who formed the tenuous majority. It is a mystery why counsel passed up the chance to have the last word in such a close case.

The reply brief must be (relatively) short, (relatively) punchy, and selective. Sometimes it will follow the same structure as the opening brief, but sometimes it will not. What it must do, to be effective, is identify from the start one or more overall themes in the argument or arguments with the best chance of winning and explain to the court where the appellee‘s brief, which it just read, went fundamentally astray.

The function of a reply brief is to respond to an adversary‘s arguments. The court can look back to your opening brief as a reminder of the overall structure of your argument and to answer nagging questions. It is therefore usually unnecessary to retrace all the steps of your logic in the reply brief, and it is far more acceptable in a reply than in an opening brief to concentrate on sharply focused (but polite) debate. Sometimes, however, your adversary may have confused things so much that re-emphasizing the structure of your arguments will be the most useful thing to do in reply.

If you must put a rhetorical flourish somewhere in your briefs — and sometimes that may be useful — the beginning or end of the reply brief is the place to put it. Rhetoric turns appellate judges off when they see it as a substitute for analysis. By the time they read your reply brief, however, the judges should know that you are prepared to analyze — and have analyzed — the issues fully. Having, in a way, paid your dues, you have more leeway for a catchy phrase or metaphor at the beginning of the reply brief. This may help dramatize the central defect in the adversary‘s brief, which the judge will have just read; such a phrase at the end of the reply brief may be the last word the judges read before they put down their papers.

Do not strive to write a pithy ending for its own sake, however. Litigation gives its authors and editors a style sheet that advises: “Formal conclusions are not worth the trouble. Start at the beginning, go to the end, then stop.” The same goes for reply briefs.

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