reduce the number of prepositional phrases,
“filler” words, redundancies, legal jargon,
and clichés. The following are examples of
clichés taken from recent briefs:
• This is pure snake oil.
• smoke and mirrors
• When pigs fly!
• pea and the shell game
• hide the pea
• bottom line
• nail on the head
• tip of the iceberg
• tail wagging the dog
• catch- 22
Judges are used to seeing legal
arguments presented in certain ways.
In general, it is best to use a more
traditional structure to your argument. Using a more unique structure may not have your desired
effect. One motion for reconsideration, for
example, was structured as a nine-page
Socratic dialogue in which Socrates explained
to the client why the court’s decision was
wrong—a clever idea that clearly expressed
counsel’s unhappiness with the decision, but
did little to enlighten the court. If you have
a clever idea for making a point, run it by a
neutral party to check if it is a bit too clever.
Brevity is important. Don’t spend a significant amount of time on “briefing” every
case you use to support your argument; focus on the analysis and how that case affects
your case. Many briefs spend so much time
reviewing the facts of the cases that the critical analysis gets buried and may get overlooked. Remember: Judges (and clerks) read
several briefs every day, day after day. Each
judge handles hundreds of cases a year, so
you have little time to grab their attention.
Do not waste it. Just because the procedural rule allows you 14,000 words does not
mean that you need to include that many.
(See ARCAP 14.) If time permits—and you
should make sure that time permits—set
aside a separate round of editing designed
specifically to pare down the “excess” language in your brief, even if you are under
the word limit.
Be professional. Refrain from engaging
in character attacks with opposing counsel
either in your briefing, motions, or at oral
argument. This merely distracts from the
merits of your argument and will not im-
press the court. It can also be a strike against
you if you are seeking attorneys’ fees and
costs on appeal.
Ask for attorneys’ fees and costs when
appropriate. Many parties forget to ask for
fees and costs, and others incorrectly cite
ARCAP 21 as the basis for the fee award.
As clarified by recent amendments, ARCAP
21 does not provide a substantive basis for
fees; it merely provides the procedure for
seeking fees on appeal. Parties must “
specifically state the statute, rule, decisional law,
contract, or other provision authorizing
an award of attorneys’ fees” for the court
to consider awarding fees. Even if the case
involves a contract dispute, unless there is
a contract provision that mandates fees, the
court may not infer a statutory basis for
awarding fees. The litigant must state the
legal basis. 1
the importance of the
The Reply Brief has the
obvious strategic advantage of being the
last word the parties will say on the issues.
It also may be the first thing the appellate
judge reads because it often is the appellant’s best presentation of its argument,
complete with the appellant’s rebuttal to
the appellee’s arguments raised in the Answering Brief.
Whether the judge reads it first or last,
your reply brief should not be a repeat of
your opening brief in fewer words. Use
the Reply as a distinct opportunity to
emphasize key points you raised in your
opening and to counter any arguments
in the Answering Brief. By addressing the
appellee’s arguments head on, you give
your argument more credibility
and tee up issues for the judges to
raise at oral argument. Your Re-
ply is your chance to narrow the
issues and clarify your arguments
so that you can proceed to oral
argument in a strong position.
The standard of review will often
control the outcome of your case.
It’s usually, and unfortunately,
For state cases you can find the standards of review in the digests. For a federal case, the Ninth Circuit has very helpful
outlines of standards of review for civil,
criminal, and agency appeals that are posted on its website. 2
Be meticulous in citing
the law and the facts
Appellate courts really do
rely on the lawyers to
properly cite the law and record. Law
clerks coming directly out of law school
10 Tips for Effective Appellate Advocacy
Before you file an appeal, give
considerable thought to what
you hope to accomplish and
what you plan to argue. It is
not enough to believe the trial
court was “wrong.”