Briefs and Briefwriting
Appellate arguments are often more honed, more focused, and perhaps more persuasive, when they are shorter than the rules' limitations. Appellate judges must read and process thousands of pages of legal arguments and appellate records. Succinctness in the recitation of facts, in argument, and in word choice, wherever practicable, is not only appreciated, it will likely improve the quality of the appellate brief.
In a brief's statement of the facts section, it is important to distill the recitation down to only those facts that are relevant to the brief's legal arguments. An appellate judge should not be put in a position of having to speculate why a party described a series of facts or events from the record that have little to do with the issues argued on appeal. Ideally, the statement of the facts should be in the form of a narrative instead of a page-by-page condensation of the witnesses' testimony.
Every recitation of fact must include a citation to the specific page or pages in the record that support that recitation. Citing to a broad range of pages for discrete factual or procedural points is discouraged.
Rule 9.210(b)(5) requires initial briefs to include "argument with regard to each issue" raised within the appeal. Though not explicit in the text, we find that the best way of fulfilling the rule's mandate is for appellants and petitioners to separately address each issue they wish to raise in the argument section of their appeal. While there may be some overlap, litigants and counsel should make every effort to separate the issues they wish to argue and then strive to keep them separate as the argument is developed in the brief.
In furtherance of point #4, appellees and respondents are strongly encouraged to follow the appellant/petitioner's order and categorization of the issues within their answer and response briefs. Many judges in our court prefer to review the sequence of arguments raised by the parties issue by issue. If an appellee or respondent does not draft a brief or response to correspond with the issues raised by the appellant or petitioner, it is very difficult, if not impossible, for the judges to consider the arguments in sequence.
The summary of argument section serves as a roadmap of the arguments on appeal. A carefully crafted summary of the argument section should be a concise and persuasive overview of the arguments that does more than simply recite the various headings or subheadings within the brief. It should set forth the best reasons a party should prevail under the particular standards of review, law, and facts.
If the statement of the case and facts begins with an introduction about the nature of the case, the introduction should be limited to a very brief, non-argumentative statement about the case and the issue or issues presented on appeal. Outlines of substantive arguments are more proper in a brief's summary of argument section. See point #6.
Appellate briefs ought to convey concise factual recitations and legal arguments in a format that should be relatively easy to read and follow. Generally speaking, the use of footnotes undermines these goals. With the advent of personal electronic devices, which most of the judges of our court now utilize for reading, footnotes are especially problematic and distracting. Moreover, using footnotes for citations to the record or to a legal citation, as is the common practice with scholarly legal writing, hampers our ability to effectively use hyperlinks to directly access the case or record citations provided in your brief.
Be extremely sparing with your use of footnotes in briefs. Under no circumstances should a party ever attempt to use footnotes as a means of exceeding the page limits of a brief (a violation of which may result in the court's striking the brief).