Form and Function in Appellate Brief Writing: A View from the Bench

By Justice Evelyn V. Keyes, Justice, First Court of Appeals and Angela W. Spoede, Staff Attorney

A discussion of the relationship between form and function had been ongoing in design and engineering circles for decades, from Louis Sullivan’s conviction that “form ever follows function” to the more modern construction by Steve Jobs that design is not just what a thing looks like but how it works. While lawyers’ work product is materially different from that of an architect or designer, we can learn a thing or two by contemplating the relationship between the form and the function of our writings, especially as they relate to persuading a court.

It is tempting to think of the form and the function of a brief as two separate considerations. For example, lawyers balance complying with the word limit requirements while still conveying the important legal issues. We attend CLE presentations on the topic of best practices in formatting briefs so that the legal arguments are more accessible to the judges who will read them. But the very best briefs—the very best writings—combine both form and function into one seamless product. Or, as famed architect Frank Lloyd Wright would have it, “Form and function should be one, joined in a spiritual union.” Any lawyer hoping to persuade a court through a brief should use every aspect of writing—the “form” of word choice, syntax, and argument structure and to the “function” of the substantive ideas needing to be conveyed—to serve the ultimate goal of persuading the Court.

The starting point must always be to know your goal. It has actually happened more than once during oral argument that the Court has received the answer, “I don’t know,” in response to the question, “What would you like us to do here?” It is unfortunately common for the Court to receive briefs that are a collection of defensive reactions, disjointed facts, legal citations, and arguments seeking to combat an unfavorable ruling or argument of the opposing party. A brief is far more effective when the practitioner determines, from the beginning, the action she wants the Court to take so that everything, from the facts all the way through the analysis to the final prayer for relief, helps to meet that goal.

From that starting point of setting up a persuasive brief, a good writer proceeds through ever-narrowing considerations of the form of the writing until she arrives at a finished product. She should select the big ideas, or issues, that will help to reach the goal. And she should resist the temptation to clutter those ideas with extraneous thoughts or less-meritorious arguments that cause the Court to lose its way through the forest. I have rarely seen a case that merits serious consideration of any more than two or three core issues.

Making a winning case on the core issues starts from the first word. Take hold of the facts from the beginning and set them out with logical force. Tell a story that is easy to follow and that makes your desired conclusion seem almost inevitable. Rambling statements of fact that leave out important details, bury those details, drag red herrings across the path, or take off on rabbit trails do not serve anyone.

Remember to consider the audience for the brief: judges and staff who are not as familiar with the details of the case and will need a thorough explanation of various terms of art or other law unique to the circumstances. Also consider opposing counsel who are very familiar with the case and will be lying in wait for any false or foolish step. Even experienced lawyers make the error of leaving out foundational information—such as the actual language of a disputed statutory or contractual provision—leaving the court to fill in details before it can consider the merits of the arguments. Be careful, too, in providing citations to the record to support your statements of fact, so that the Court can easily verify your statements and find the relevant documents.

The analysis should always be structured to support the ultimate goal. Set out the applicable legal standards and supporting law in a way that mirrors the facts already provided. Be specific regarding which evidence and relevant facts support the different elements of the claim. And don’t forget to draw a conclusion and ask for what you want. It is always most helpful when the conclusions and prayer for relief are specific and detailed.

Finally, consider word choice and syntax carefully. Be sure to do a round of editing or proofreading exclusively dealing with issues of grammar. Most judges will not dismiss valid legal arguments just because they are communicated unartfully or with grammatical errors. But they notice. And it does not help you if the judge thinks you cannot write a grammatical sentence or a logical argument.

It behooves every writer to put effort into learning and using proper grammatical forms. At best, extensive errors of grammar or spelling are distracting and undermine the judge’s confidence in the strength of your legal arguments. In the worst cases, such errors as sentence fragments and poor word choice can make your arguments nearly incomprehensible. Writers with “amble” evidence to support their positions, who write impenetrable run-on sentences, or who use an ellipsis in every other line, make brief-reading a chore. By contrast, pithy and appropriate word choice, clear syntax, and logical structure reinforce the strength of sound legal arguments and lend credence to your position.

And there is one other thing. Do not take a scornful attitude towards the intelligence of the judge or opposing counsel in a brief or in court. Yes, this happens too, though seldom. And when it does, it undermines everything you have just done to persuade. Keep always on track with your clear goal in mind: a clean and honest win for a well-put cause.