Unlike trials where a judge receives information at many levels, in writing, by testimony, and through body language, and, importantly, the interaction all have with each other, appeals are based on flat and cold records (transcript of word-for-word proceedings and exhibits admitted). Thus, the sole means the Indiana Court of Appeals, Supreme Court, or any other appellate court reviews the case is in writing (although sometimes there are oral arguments).
Writing ability is thus important. At Ciyou & Dixon, P.C., we believe a hallmark of a good appellate brief is a client reading it and believing it tells his or her story. The better it reads and ease by which it flows should appear simple. This simple read is exceedingly difficult to achieve. However, there are three (3) constants or keys to effective appellate writing and appellate advocates.
Attention to Detail.
The first is attention to detail.
Unlike trial courts where passion and emotion have a place, appellate advocacy is more about the law itself. For this reason, and to prevent any more distortion than what occurs in any trial court, it is critical that the brief recount the facts and law with surgical precision. For some, this may be boring, but for appellate writers, the written word almost congers up a holographic image of the points to be made–the words jump off the page!
The Indiana Rules of Appellate Procedure indeed anticipate and require this type of writing with pinpoint cites to the record (the exact place where the fact is found) or cases or statutes. This is so the reviewing court can determine if the trial court weighed the facts correctly (to which great deference is given) and rightly applied the law (to which there is no deference). Skilled appellate advocates understand this is not the place to retry the case.
Thus, great attention to detail is required in fact and law in order to properly brief a case for the Court of Appeals. The best case, if sloppily drafted, may not prevail. In many respects this type of writing is akin to painting a fine portrait, not the side of a house. This is a key aspect of appellate advocacy you should seek in your counsel or strive for if you are the brief writer.
Objectivity in Style.
The distinction between objective facts versus subjective facts confound many. For the most part, subjective facts are not proper in appeals. The best understanding of objective versus subjective facts comes with experience. However, a few examples are in order and should help writers understand this distinction for legal writing.
The subjective fact that “it is cold outside” really does not tell a judge, jury or court of appeals if this attributed to the accident or event at hand. However, the objective fact that it was 20 degrees Fahrenheit and windy precisely explains that water on a bridge may have frozen before the rest of the roadway, leading to the slide off and accident.
Puffy and fluffy, or flowery, verbiage is often a waste of valuable appellate writing space and is an instant “red” flag that the legal issue at hand has problems. On the other hand, good writers know there is great power in mixing it up if the writing calls for it. A carefully placed one-word sentence or subjective sentence or words amongst the objective, particularly in argument, may have a powerful effect.
Each appeal, much like every case, is unique. However, the most effective appellate writers have developed a systematic and uniform way they approach each brief they draft. No particular way is better, so long as it is linear in nature; but approaching each task the same way and refining it from that point (or scrapping it) is the way to go.
Two (2) examples make this point. First, every good or great appellate writer has drafted the perfect sentence or paragraph only to later find it does not fit within the argument or issue. The most skilled writers simply scrape the sentence or paragraph. However, the bigger temptation is to write the rest of the argument around it.
This leads to less than precise logic and unnecessary facts and inferences to reach the point that could be made easier if that perfect word or sentence were discarded. The best writing is re-writing.
Second, a uniform approach may nevertheless appear anything but uniform. For example, attorney Bryan Ciyou, the author of this post, begins each brief with the argument. They dynamics of writing and permutations of the argument allow it to be refined and finalized and then the rest of the brief “poured” in around it.
This requires a firm command of the underlying record, but ultimately, is a time saver and allows for the best brief possible. Is this the only way to be an effective appellate writer? Obviously, the answer is “no”. Rules have exceptions. The point is there are rules–a systematic way every argument is written. Deviate as required.
Indeed, a good way to envision effective legal writing–from argument to facts–is like footprints on a wet beach. One print (fact or argument point) should be followed by another equally spaced one down the beach until the line of sight fades. In other words, there are no gaps in the prints or expanses where they are not present.
At Ciyou & Dixon, P.C., we hope you find these three (3) key points of legal writing helpful–whether you are writer, attorney, or using these criteria to select an appellate advocate. If so, this blog has met it goal. Ciyou & Dixon, P.C. attorneys handle appellate cases in the Indiana Court of Appeals or Supreme Court.