22 Jul If You Appeal Make Sure Your Attorney Writes a Winning Appellate Brief

Last week Edwards Law discussed several items you must take into consideration before you spend time and money hiring an attorney to appeal your case.  This week’s blog discusses the recipe for drafting a winning appellate brief.

The Goal of an Appeal

As stated in our last blog, the goal of your appeal and the key to a winning appellate brief is to convince a three-judge panel that it should affirm or reverse your trial court’s order or ruling.  To that end, it is essential that your attorney follow some key rules of thumb when drafting these types of briefs.

Apply the Correct Standard of Review for Each Issue

Each issue you raise on appeal will have its own standard of review.  For each issue raised, your attorney should provide that standard of review in a separate section.  This section should also include a citation to the record where the issue was ruled on by the trial court or was otherwise preserved below.  The standard of review is critical to a winning appellate brief because it drives the appellate analysis.  While the trial court’s error is important, what is more important is whether that error is “reviewable” by the appellate court and under what standard it is reviewable.

Be Clear in Setting out the Issues for Review

This may seem obvious but your attorney should be able to set forth your most important issues or contentions for review in a clear and concise matter to the appellate court.  If you cannot understand the issues, then your attorney is not doing his or her job.  A winning appellate brief will keep the issues or contentions for review down to a maximum of three to five key issues, with the most important issues placed first on the list.  It is should be easy for the judges to see the issues; the appellate court should not be forced to sift through pages of disputed factual allegations to see the issues.  Also, if the issue was not raised before the trial court, the Court of Appeals typically will not consider it.

Provide a Strong Legal Analysis to Ensure a Winning Appellate Brief

Strong legal analysis is usually the difference between winning and losing an appeal.  Your attorney should focus on the following five points to ensure he or she drafts a winning appellate brief:

1. Make sure the legal analysis is framed within the applicable standard of review set forth earlier in the brief. For example, your attorney should not be arguing that the trial court “erred” if the standard of review is “abuse of discretion”, which is a different standard of review.
2. Make sure the legal analysis is complete. This means that only relevant and necessary facts and law should be included in the legal analysis.  Also the analysis must include a sufficient factual background, and the request you are seeking from the appellate court should be succinct.  In addition, if an issue you are raising on appeal is one of “first impression”, meaning, it has not been decided by a higher court, then it is critical that your attorney lay out the majority and minority views on the issue, and that he or she argue for the adoption of one view.
3. Make sure the legal analysis keeps inferences to a minimum. It is very difficult for many attorneys to connect his or her legal points in legal analysis without making at least some inferences from the facts presented.  An inference is a conclusion that you are asking the court to make based on evidence and reasoning.  Inferences are okay if kept to a minimum.  The bigger inference that the appellate court needs to make, the more difficult the argument is to follow and the easier it is for the opposing attorney to refute missing elements in your legal analysis.
4. Legal analysis should not be conclusory. This means that the conclusion or ending statement for your legal analysis should be supported by facts or law.  For example, if you conclude that that a law required the trial court to find that the sky is blue, you cannot conclude this finding simply by saying the trial court should have found the sky is blue.  Rather, your concluding statement should state the factual reasons why the trial court should have found that the sky was blue under the law, i.e., because the sun was shining and there wasn’t a cloud in the sky.  Also, make sure these supporting facts were addressed earlier in the legal analysis.
5. Last but not least, the opposing party’s arguments should be anticipated and addressed clearly in your opening brief. There is nothing more fatal to a winning appellate brief than appearing to the appellate court that you are hiding something or worst yet not being truthful with the court.  If possible, try to distinguish the other side’s arguments with existing law, rather than policy or an argument to expand existing law.

If your attorney follows these five points, your chances of winning on appeal are greatly increased.

Include All Applicable Law and Cite the Law Correctly

Your winning appellate brief should also include all of the law that the appellate court will need in order to make a ruling on your appeal.  If you are relying solely on Colorado law, use it, because Colorado law is the most persuasive.  If you are asking the appellate court to decide on an “issue of first impression”, try to rely on cases decided in the Tenth Circuit, which includes cases decided in Utah, Wyoming, New Mexico, Kansas and Oklahoma.

Also, your attorney must be sure to cite case law accurately.  If your attorney over-generalizes or mischaracterizes the holding in a case, he or she will lose credibility and decrease your chances of creating a winning appellate brief.  Also, your attorney should provide the appellate court with a full citation of each case, so that the appellate court can easily find the location of your citation in the case law.  Lastly, if the law your attorney is citing is hard to find, make sure your attorney attaches the law to your appellate brief to make the appellate court’s job easier when deciding on your appeal.

Edwards Law has vast experience in appeals at numerous levels and in numerous states.  Call today for a free, initial consultation to discuss whether you have what you need to file a winning appellate brief.