Whittling: Drafting Concise and Effective Appellate Briefs

Every appellate attorney's nightmare is realizing too late that inartful language in a brief fatally distracts from the core of the argument, sending one judge scurrying down dead-end rabbit holes or playing to another's jurisprudential eccentricities. Applying the simple three-step approach outlined below can help you avoid that experience, but be warned: Although the tools for avoiding such mistakes are simple, they often require years of practice and effort to apply with skill. Stealing a few tricks from military discipline can make this process easier. I. INTRODUCTION: WHAT I DO AND WHY Over the past eight years, I have become responsible for the appellate output of ten appellate litigators. I have trained and mooted some fifty attorneys to write and argue effectively, including shaping and editing over a thousand substantive briefs and extraordinary writs filed in the two-tier military appellate court system and in the Supreme Court. Our attorneys--military officers and judge advocates in the Navy and Marine Corps--arrive at my doorstep with some trial but no appellate experience, and serve only two-to-three-year terms as appellate litigators. My goal is to craft our attorneys into effective, hard-charging appellate advocates within six to twelve months of their arrival, so that I wrest two productive years from each attorney. The training curve is steep, the hurdles facing us huge: Each counsel's caseload on any given day is upwards of ten appellate cases. There is no dedicated paralegal support staff to cite-check, Shepardize, or perfect formatting. Three years is a short time in which to learn and excel at any area of law. And appellate law, one of the broadest and most complex areas of the law, poses a particular challenge for eager young attorneys fresh from law school. Competence as an appellate advocate requires the most thorough research skills, quick but comprehensive understanding of new concepts and legal tests, and an ability to encapsulate an entire argument in only a few short sentences. This conceptual ability to draw useful analogies and comparisons bridging disparate doctrines and lines of cases is particularly necessary in appellate law. Appellate lawyers think laterally, analogize, bridge gaps in understanding. (1) Despite these hurdles, by employing the system I describe below, within six to twelve months from setting their bags down in our office spaces, most if not all my attorneys have become competent appellate lawyers, able to verbally distill the development of precedent and circuit splits into terse, effective sentences. More impressively, when they leave after three years for new assignments, a full half--if not more--of my attorneys could aggressively and responsively argue in the highest court of every state, a federal court of appeals, or the United States Supreme Court, and craft briefs to match. How is this possible? It's simple: I use the same commonsense, no-nonsense approach the best military units use to train combat and support troops in new skills. Marines call these "muscle memory" classes. Others call the technique "monkey see-monkey do." But to help these young attorneys reach the broad and deep understanding required for appellate briefing in less than a year, there is no other way: We engage in a rigorous course of on-the-job learning that is well suited to the men and women of action who comprise the military. It is learning by doing. In combination with the skills the best military officers bring to the practice and to my office--brashness, boldness, initiative, delegation, and trust in low-level leadership--this technique produces competent appellate practitioners quickly. And given that hard-working attorneys everywhere share or learn these traits, this technique can work in any appellate practice. For the fundamentals of good appellate writing are neither costly nor complex. It is no cliche, but it is entirely accurate, to say that good legal writing comes from within. …