HOW TO WIN ON APPEAL:

THE PERSUASIVE APPELLATE BRIEF

BY DEBORAH PEARCE REGGIO1
9605 JEFFERSON HWY., #I-121
NEW ORLEANS, LOUISIANA 70123
(504) 738-0803
(504) 738-0844
[email protected]

A. CRAFTING A GOOD APPELLATE BRIEF

1. REVIEW THE RULES

2. THINK BEFORE YOU WRITE
3. THE JUDGE’S PERSPECTIVE
4. LEGAL JARGON, FOOTNOTES, AND BLOCK QUOTES
5. THE PROPER TONE
6. OUTLINE BEFORE WRITING
7. REVIEW THE RECORD

B. SPECIFIC WRITING TIPS

1. THE DO’S AND DON’TS OF BRIEF WRITING

2. FIFTH CIRCUIT GUIDELINES

C. SPECIFICS ON APPELLATE BRIEFING

1. STATEMENT REGARDING ORAL ARGUMENT

2. STATEMENT OF JURISDICTION
3. STATEMENT OF THE ISSUES
4. STATEMENT OF THE CASE AND STATEMENT OF THE FACTS
5. SUMMARY OF THE ARGUMENT
6. ARGUMENT AND AUTHORITIES
7. CONCLUSION
8. CERTIFICATES

1
Deborah Pearce Reggio has served as appellate counsel in almost one hundred
appeals before the Fifth and Eleventh Circuits. She is on the Board of Governors for
the Fifth Circuit Bar Association, for which she will serve as President in 2004-06, she
is the Chairperson of the Appellate Section of the Federal Bar Association, and she is
the Reporter of Appellate Jurisdiction, Procedure and Standards of Review for the
Fifth Circuit Reporter, as well as the Adjunct Professor of Appellate Practice and
Procedure at Tulane School of Law. Ms. Pearce Reggio can be reached at (504) 738-
0803; [email protected].
D. RECORD EXCERPTS

E. THE APPELLEE’S BRIEF

F. FREQUENTLY ASKED QUESTIONS ABOUT APPELLATE BRIEFS

 INTRODUCTION TO BRIEF WRITING.
The key to success on appeal is a clear, concise and persuasive appellate brief. As one Fifth
Circuit judge puts it, “[t]he brief is literally the appellant’s ticket to oral argument, and frequently the
appellee’s ‘pass’ to avoid oral argument.”2 In all federal circuits, the vast majority of appeals do not
receive oral argument. The Fifth Circuit grants argument in only about 30 percent of its cases. Most
cases are decided according to the Courts’ "summary calendar" procedures, or other similar
procedures for swiftly disposing of an appeal. In the Fifth Circuit, a case decided on the "summary
calendar" is decided solely on the appellate briefs and, in these cases, the brief is the sole
opportunity to present the case to the Court. Even in those cases when counsel does receive oral
argument, it is still the brief that largely influences the appellate judges to reach a particular result
and to ask certain questions at argument. The judges on the Fifth Circuit always read the briefs
before argument and rely heavily on them throughout the course of the appeal. If the brief is well
written, it will serve as a guide for the court’s opinion.

A. OVERRIDING RULES FOR CRAFTING A GOOD APPELLATE BRIEF.

1. Before Writing, Review the Appellate and Local Rules.

Both the Federal Rules of Appellate Procedure and the Fifth Circuit Local
Rules contain mandatory requirements that dictate the form and contents of
an appellate brief. FRAP and Local Rule 28, in particular, govern the
requirements for briefs. These rules are available electronically, via the Fifth
Circuit website, www.ca5.uscourts.gov, or may be obtained in hard copy
from the clerk’s office.

2. Think Before You Write.

Several preliminary questions will inform the analyses and organization of
your appellate brief. The prudent appellate practitioner will carefully
consider such questions as (i) whether appellate jurisdiction exists; (b) the
governing standard of review; and (iii) whether the errors presented are legal
or factual in nature. As a secondary step, carefully consider (i) which facts
are extraneous or irrelevant to the issues at hand--and omit those unless
absolutely necessary to understanding the factual background of the case; and
(ii) which legal issues truly deserve review on appeal--seldom should more
than two or three issues be presented for review on appeal.

2
Honorable Jacques L. Wiener, Jr., Ruminations from the Bench: Brief Writing and Oral
Argument in the Fifth Circuit, 70 Tul.L.Rev. 187 (1995).

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 3. The Judge’s Perspective.
Judges are persuaded by clear, concise reasoning, which is accurately
supported by the record and the law. Counsel must inform before he or she
can convince. Judges dislike emotional appeals, extensive griping, whining,
and disparaging remarks about the district judge or the opposing counsel or
party.
4. Legal Jargon, Footnotes, and Block Quotes.
Legal jargon serves no one. It creates stumbling blocks for the reader. While
the use of legal terms of art are necessary at times, "legalese" is not. A well
written brief should be understandable to a lay person.

Many judges say they do not read footnotes. Counsel should use footnotes
sparingly and avoid making arguments in footnotes. Indeed, it has been held
that an argument made in a footnote, alone, is waived on appeal. This author
uses footnotes sparingly, and only to include information that will help the
law clerks or provide helpful background for a particular issue or point.
Block quotes should be avoided whenever possible. Long block quotes lose
the reader and are generally regarded as a sign of lawyer laziness. Moreover,
under the new word or line count rules, block quotes provide no space-saving
advantage. Unless a quote says it better than you could say it in lay terms, do
not resort to using a block quote.

5. Taking the Proper Tone in a Brief.

The tone of a brief should be very much like the tone of an appellate
decision. It should reasonably explain the facts and the applicable law.

6. Outline Before Writing.

Prepare a full outline before putting pen to paper or fingers to keyboard. As
on judge explains, “[y]our outline is the womb of your tactical and strategic
planning: Be sure you go full term and avoid premature birth.”3 The author
also finds it helpful to look at the structure used by the Court when writing
closely analogous appellate decisions, in settling on a structure for the
appellate brief.

3
Supra n. 2.

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 7. Thoroughly Review the Record.
Finally, no research or writing should ever be done before obtaining a
thorough understanding of the appellate record. As the appellant, it is your
duty to order the transcript and make certain it is filed as part of the record on
appeal. As either appellant or appellee, it is your obligation to know the
procedural history of the case, all motions granted, denied and not made, all
evidentiary rulings granted, denied and not made, and to assess preservation
of all potential issues for appeal.

B. SPECIFIC WRITING TIPS.

1. The do’s and don’ts of effective writing.

a. Do pay particular attention to the style and caption of the brief.

b. Do use concise, strong sentences written in active voice, which will

make the brief persuasive. Many judges suggest that counsel delete
all adjectives and adverbs. A lay person should be able to read a well-
written brief and understand the facts of the case and thrust of the
arguments.

c. Do edit the brief at least twice and have someone who has not
previously read the brief proofread it. A brief should be just that,
“brief.” Avoid literary or flowery language, and treat the brief as the
technical writing that it is.

d. Do check all copies to make certain that each page is legible and that
pages are in the right order, and submit the brief timely, or ahead of
deadline.

e. Do cite controlling circuit court and Supreme Court authorities. The

Fifth Circuit, for example, is bound by its own panel decisions unless
the decision is reversed by the en banc court or the Supreme Court.

f. Do admit and address adverse precedent. At counsel’s discretion, he

or she may include citations to decisions in other Circuits when the
Fifth Circuit has not addressed the issue or when the case is going to
be heard en banc.

g. Do admit and address the adverse facts in the case as well as adverse
precedent. The judges, staff attorneys, and law clerks are bright and
thorough. Counsel cannot avoid the truth and will lose precious
credibility. The problems in each case must be analyzed and

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 explained. There is no substitute for intellectual integrity.

h. Do serve a copy of your brief, preferably in Word Perfect, on the

court and opposing counsel. Rule 31.1.

i. Do include service of a disk in PDF in your certificate of service.

j. Do include the precise word count in your certificate of compliance.

k. Don’t overuse footnotes, long block quotes or long string cites.

l. Don’t attack the district judge or the other side, although exception
may be made for a witness who clearly lied in deposition or on the
stand.

2. Fifth Circuit Guidelines for Briefing a Federal Appeal.

*See Exhibit B: Briefing Checklist of the Fifth Circuit.

C. SPECIFICS ON APPELLATE BRIEFING

*See Exhibit C: Sample Brief Format.

1. Statement Regarding Oral Argument.

Especially if you are the appellant, do not pass up this opportunity to begin to
inform the Court and to convince it that it should roll up its sleeves and take a
closer look at this case. Formalism is not the key here. Instead, include enough
critical facts to attract the Court’s attention. Try to be specific and intriguing so
that the Court will want to hear what you have to say and give you the
opportunity to say it.

2. Statement of Jurisdiction.

As stated, jurisdiction is a preliminary question that should be answered before

delving too deeply into the appeal. In some instances, jurisdiction will itself be a
critical issue, deserving of careful research and scrutiny. The Court will address
the issue of subject matter jurisdiction on its own, if you do not. Do not make the
critical error of overlooking this important issue.

3. Statement of the Issues.

Issues to be raised on appeal are called "issues"--not "points of error." Each issue
statement should be succinct, accurate, and sufficiently self-explanatory to

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 enable the judge to understand the nature of the issues by reading only the
statement of them. The following are examples of concise statements of the
issue:

Did the district court abuse its discretion in instructing the jury that oil on the
walkway was a violation of the Boiler Inspection Act?

Whether the district court correctly granted summary judgment in favor of

KIII, finding that KIII is the exclusive owner of the concert videotape and
thus did not commit copyright infringement?

4. Statement of the Case and Statement of the Facts.

a. Statement of the Case--Course of Proceedings and Disposition Below.

Counsel should briefly outline the key facts of the procedural history
of the case in the section subtitled "Course of Proceedings and
Disposition in the Court Below." Counsel should include a record
reference at the end of each sentence and should omit all unnecessary
procedural facts and dates. An example of this section is as follows:

On January 23, 1999, Bethany Karr was asked to leave the Selma,
Alabama Wal-Mart when, in response to the denial of her friend’s check for
lack of identification, Karr became disruptive and disorderly, arguing,
shouting and cursing at the Wal-Mart cashier, manager, and security guard
who politely asked her to leave. Karr subsequently filed suit against Wal-
Mart under the American with Disabilities Act, claiming she has Tourette’s
Syndrome (“TS”) and was not accommodated. She also sued under Alabama
state tort law, alleging assault, battery, violation of her privacy right,
negligent supervision and training, and outrage and intentional infliction of
emotional distress (R-I-1-6-7). On summary judgment, the district judge
dismissed Karr’s ADA and various tort claims, but allowed a jury to
determine factual issues relating to her battery claim (R-I-47). The jury
returned a verdict in favor of Wal-Mart after 40 minutes of deliberation (R-
II-59; R-III). Karr timely appealed (R-III-64).

b. Statement of the Facts.

The statement of facts is often the most critical section of the brief.
An effective statement of facts can tilt the scale in favor of one’s
client. The judges know or can easily learn the law, but the facts of
each case are unique and determine its outcome. Therefore, the
practitioner should use the statement of facts to tell the story of the
case in chronological or some other logical order. Counsel must not

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 simply summarize the testimony of each witness; nor should counsel
slant the testimony in the client’s favor. To write anything less than
an accurate statement of facts can cost an attorney credibility with the
court. Counsel can, however, identify points with which the appellant
disagrees and on which there was conflicting testimony. There must
be a correct record reference for each statement of fact, and the
citations should be to the original record as numbered by the court.
Counsel should include nothing in the Statement of the Facts that
cannot be found in the record. Counsel should also be aware that
omitting a critical fact is tantamount to misrepresenting it. You are
always better off facing up to bad facts and deflating them before
your opponent has the opportunity to use them against you.

5. Summary of the Argument.

Save this section of your brief for last. It should be a condensed version of
your arguments on appeal, and should rarely, if ever, exceed more than a
page or two in length.

6. Argument and Authorities.

(i). Arguments and authorities.

The brief of the appellant must contain, under an appropriate heading, an

argument. Any issue posed for appellate review but not argued in the opening
brief is waived. The argument must contain the contentions of the appellant
on the issues presented, and the reasons therefor, with citations to the
authorities, statues, and the record. If research reveals conflicting panel
decisions, the first decision’s rule of law governs. Furthermore, unpublished
opinions issued prior to January 1, 1996, bind subsequent panels unless a
contrary decision from the United States Supreme Court or the Fifth Circuit
Court of Appeals en banc exists. Unpublished decisions issued on or after
January 1, 1996 are not precedent except as res judicata, collateral estoppel
or law of the case. An unpublished opinion may be cited, in which case a
copy must be attached. The argument must also include a concise statement
of the applicable standard of review; this statement should appear under a
separate subheading placed before the discussion of each issue.

In appeals to the Fifth Circuit, arguments and authority are called "arguments
and authorities"--not "points of error." Counsel should carefully select the
arguments and authorities. Few cases present more than three real issues that
warrant appellate scrutiny. Arguing a myriad of issues will detract from the
real issue. Logically, whenever possible, counsel should make the strongest
argument first.

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(ii). Headings and subheadings.
The use of concise headings and subheadings is helpful to the court, but to be
effective, they should not be overused. Although the appellee usually should
respond as directly as possible to the appellant’s issues, the appellee is not
bound by the appellant’s characterization of the issues or arguments or to the
appellant’s order of the arguments. The appellee should indicate beneath his
caption, however, which of the appellant’s arguments he is answering and the
corresponding page numbers. If there is an issue that is dispositive of the
appellant’s case, it should be addressed first.

(iii). A suggested format for writing each argument.

The structure of the argument must be designed to facilitate a logical

presentation and a clear understanding of the party’s position. In the course
of writing numerous briefs, the author developed the following format. If one
employs this format, the brief helps write itself.

a. The appellant, in his first paragraph for each argument, should

explain how the trial court erred. The appellee, in his first paragraph
for each argument, should explain the appellant’s contention.

b. Next, counsel should address whether the issue was preserved,

explain how it was preserved, and put in context the appropriate
standard of review. FRAP 28(a)(9)(B) requires a "concise statement
of the applicable standard of review" for each issue.

c. Counsel should then explain the applicable law, the legal test, the
essential elements of the offense, or the legal principles relevant to
the issue raised.

d. Counsel should explain the applicable facts. Many issues require an

explanation of procedural facts or other portions of the record that
would not be included appropriately in the statement of facts, which
is reserved in most cases for the "story" of the case. Issue-specific
facts are most efficiently detailed in the argument to which they are
relevant. Counsel should provide record references for each
statement.

e. Next, counsel should apply the law to the facts, a step which many
brief writers overlook. Counsel must explain to the court how the law
cited applies to the facts and how the court should resolve the issue.

f. It is also important to cite and detail the most similar cases and to
distinguish any close, adverse cases. If there is a case that is clearly

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 dispositive of the issue raised, it may be appropriate to skip step (c) in
favor of step (f).

g. The last step is to discuss any equitable or policy considerations, if

necessary and appropriate, and briefly to conclude.

h. If counsel will follow this structure, adapting it as necessary to suit

the peculiarities of each case, counsel’s arguments will be more fully
developed and more helpful to the court.

7. Conclusion.

Counsel should conclude the brief by stating the precise relief sought and by
providing a brief summary of the reasons why he or she should prevail. The
conclusion usually should not exceed one-half page. A more lengthy
conclusion may be appropriate in longer briefs, but most often it can be
accomplished in one or two sentences. An example:

CONCLUSION

For these reasons, the District Court’s determination that it lacked

subject matter jurisdiction was correct, and it properly dismissed Plaintiffs’
complaint. Plaintiffs cannot create jurisdiction and must be estopped by their
own misconduct. Accordingly, this Court should affirm the judgment of the
District Court.
8. Certificates

The appellate brief is required to have two certificates at the end of the brief:
(1) the certificate of service, and (2) the certificate of compliance. Samples
of each are below:

CERTIFICATE OF SERVICE

I hereby certify that two true and correct hard copies and a diskette copy in
PDF formal of the Brief of Appellee [name] were served on [list name and address of
opposing counsel], via first class mail, postage prepaid, on August 20, 2002.
_________________________________
Signature of filing attorney

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 CERTIFICATE OF COMPLIANCE

Pursuant to 5th Cir. R. 32.2 and .3, the undersigned certifies this brief
complies with the type-volume limitations of Fed. R. App. P. 32(a)(7).

1. EXCLUSIVE OF THE EXEMPTED PORTIONS IN 5th Cir. R. 32.2, THE BRIEF

CONTAINS (select one):

A. _____________ words, OR

B. _____________ lines of text in monospaced typeface.

2. THE BRIEF HAS BEEN PREPARED (select one):

A. in proportionally spaced typeface using:

Software Name and Version: ____________________________________

in (Typeface Name and Font Size): _______________________, OR

B. in monospaced(nonproportionally spaced)typeface using:

Typeface name and number of characters per inch:

________________________________________________

3. THE UNDERSIGNED UNDERSTANDS A MATERIAL

MISREPRESENTATION IN COMPLETING THIS CERTIFICATE, OR
CIRCUMVENTION OF THE TYPE-VOLUME LIMITS IN Fed. R. App. P. 32
(a)(7), MAY RESULT IN THE COURT'S STRIKING THE BRIEF AND
IMPOSING SANCTIONS AGAINST THE PERSON SIGNING THE BRIEF.
__________________________________
Signature of filing party
D. RECORD EXCERPTS.
FRAP and Local Rule 30 govern record excerpts. An appellant must file certain
record excerpts, the list of which is contained in these rules. In addition, each party
is allowed to file up to 40 pages of optional record excerpts. Take advantage of this
opportunity to include copies of documents that are important to your case. The
record excerpts must be bound separately from the appellate brief, and must be filed
at the same time as the appellate brief.

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E. THE REPLY BRIEF.
An appellant is entitled to submit a short reply brief after the appellee’s brief is filed.
The reply brief should be limited to rebuttal only, and may not include new or
additional matters not raised by the appellant it his or her opening brief. Moreover,
the rebuttal should be only of important errors or factual mischaracterization that
might otherwise impact the outcome of the appeal. Avoid nitpicking and sarcasm.
At times, the reply presents an opportunity to join the issues in the way the court
would, and some appellate attorneys find it worthwhile to write the appellate brief as
if it were a sample opinion for the court.

F. THE APPELLEE’S BRIEF

Despite rather slim reversal statistics (a mere 10 percent or so in the Fifth Circuit), an
appellee who approaches briefing with complacency or over-confidence may later
live to regret it. Except is the rare cases of frivolous appeals, counsel should always
approach the appellee’s brief and position as if the win below was a close one that
could have gone either way. On appeal, the appellee’s task is to (1) support the
district court’s judgment and decision--whether based on the district court’s
reasoning or, additionally, other reasoning, and (2) rebut those matters of the
appellant’s brief that deserve rebutting. Many of the rules applicable to the
appellant’s brief also apply to the appellee’s brief. There are a few exceptions,
however: (1) an appellee need not recite a statement of jurisdiction, which is a fine
omission if jurisdiction is not at issue; (2) an appellee need not recite his or her own
statement of issues or facts, but would be well-advised to do so. The appellee’s brief
should address the appellant’s legal arguments head-on, but need not organize his or
her arguments in the same fashion. This author often finds it helpful to label, for the
court, which argument and pages of the appellant’s brief are being addressed in each
particular section of the appellee’s brief.
Finally, a few housekeeping notes. An appellee most often will not want to request
oral argument but, like the appellant, should not overlook this first opportunity to
address the court. Explain why, using specifics and facts, the court will not be
helped by granting argument in the case. Also, an appellee, like the appellant, is
allowed to file 40 pages of optional record excerpts. Do not overlook this
opportunity to bring important documentary evidence to the Court’s attention.

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K. Most Frequently Asked Questions at the Clerk’s Office

1. General Questions.
Can I speak to a judge or a law clerk about my case? No. The clerk's office is the point of
contact between litigants, their counsel and the court. The only exception is in an emergency
situation in a particular case where a judge directs you to send a response directly to
chambers.

What is your address and how do I get to the court? We are at 600 Camp Street, New
Orleans, LA 70130. Maps can be accessed by going to the clerk's office page of our web site
and selecting the "Maps and Directories" section near the bottom of the page. If you are
driving from the airport, exit the airport and take the Airport Access Road to I-10 eastbound.
Follow I-10 and at the "split" of I-10 and I-610, stay to the right going to the "Central
Business District." As you proceed toward the Mississippi River, there will be a sign and a
right exit for I-10 to "Slidell." DO NOT TAKE THIS EXIT. Keep going straight toward the
river. The expressway is now technically called US 90 West or the "Pontchartrain
Expressway." Take the "Carondelet/St. Charles" exit. This is a short exit with a stoplight at
the base of the exit. Cross Carondelet and at the next light, make a left turn onto St. Charles
Avenue. Go through the stoplight to "Lee Circle." Make the first right exit which is "Andrew
Higgins Drive" (formerly Howard Avenue). Get in the left lane, and go one block. At the
stoplight turn left onto "Camp Street." Proceed down Camp Street until you reach "600
Camp." Parking is limited, but there are some commercial garages in the general area of the
courthouse.

What does it cost to file a notice of appeal? There is a $5 fee imposed by 28 U.S.C. § 1917
and a $250 docketing fee imposed by the Judicial Conference of the United States under its
delegated authority in 28 U.S.C. § 1913. These fees are paid to the district court clerk.

If you allow three days for mailing a brief, why does the date on your Internet web site show
a different brief due date? The automated case management system defaults to a set due date
- 40 days for an appellant's brief, 30 days for an appellee's brief, etc. You must either
personally serve the brief on that date or mail it or deliver it to a third party commercial
delivery service for delivery within three days. If you mail or use a delivery service for your
brief you are afforded three additional days.

Which software should the brief be typed in? To insure maximum compatibility with our
systems, we prefer that you use WordPerfect version 6.1 or higher. We have our biggest
problem with briefs prepared on non-IBM compatible systems, and ask that you not use them
if possible. Effective December 1, 2002, counsel who prepare briefs on a computer must file
an electronic copy with the court and serve an electronic copy on the other parties using
Adobe Acrobat PDF software, see 5th Cir. R. 31.1, on our web site under the section entitled
"Approved Amendments to 5th Cir. R. effective December 1, 2002."

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How many copies of my:

a. brief;

b. record excerpts;

c. petitions for rehearing;

do I need to file? You must file 7 paper copies of your brief with the court. In addition, if the
brief was prepared on a computer, you must also file an electronic copy with the court, 5th
Cir. R. 31.1. You must file 4 copies of your record excerpts with the court, 5th Cir. R. 30.1.2.
You must file 4 copies of a petition for panel rehearing, 5th Cir. R. 40.1. You must file 20
copies of a petition for rehearing en banc, 5th Cir. R. 35.2.

How many copies of motions do I need to file? You must file 2 copies of motions which can
be ruled on by a single judge or the clerk; and 4 copies of motions which must be presented
to a panel of judges, 5th Cir. R. 27.4.

Does my motion have to have a cover? No, but the motion must have a caption with the case
number, name of the court, title of the case, a brief descriptive title of the motion and
identify the party for whom the motion is filed, Fed. R. App. P. 27(d)(2)(B).

Do I need to provide the court with a proposed order when I file a motion? No.

How much do you charge to copy documents? The Judicial Conference of the United States
has set a fee of $.50 per page for copies of documents. As an exception, there is a flat rate
cost of $3.00 for a copy of an opinion in a case. The fees must be paid in advance.

etc.? If we have the documents in our office, we should be able to send them within 3
working days after we receive your payment.

5. Oral Argument.

I am the cross-appellant in a case, do I get time for rebuttal? No.

Does the Fifth Circuit web site contain all opinions? How long does it take for an opinion to
appear on the web site? Only opinions designated for publication (published opinions) are
put on our web site.

How do I download the WordPerfect version of an opinion? On the left frame of both the
court's home page and the opinions page, there is a link, "Download WordPerfect Formatted
Opinions by Docket Number here." Clicking on that link opens the ftp site, where you can
choose from New (today's), Last 30, or Pub. The opinions are organized by the first two
digits of the docket number. Once you locate the opinion you want, double-click on it to save

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to your computer in WordPerfect format.

How can I track the status of my CJA voucher? See the court's Internet home page and click
on "CJA vouchers" link on the left hand side of the screen.

What is recoverable under a "bill of costs?" In general, see 5th Cir. R. 39. If the court awards
you costs, you may submit a bill of costs and recover:

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