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hello and welcome to the continuation of the appellate practice and procedure course it's solo practice University I'm just going to jump into today's lesson class number four which is handling an appeal preparing briefs and this is going to be part one of this lesson as I'll explain in a few minutes you should all know by now that briefs are important extremely important in the appellate process as the first slide indicates the introductory slide most appeals are won or lost on the briefs and that's something that holds true aside from the actual merits of the case sometimes cases are won or lost really on the merits but as far as opportunities for advocacy are concerned briefs are kind of where the rubber meets the road oral argument is a very important part of appellate practice but as a practical matter it does not it is not outcome determinative in the same way that briefs can be so that's the reason for the emphasis here is that briefs have a much larger impact on the outcome of a case the oil argument does the purpose of the brief is to persuade the court why your client should win and we'll get into that in a few minutes we're going to focus on today and in the overall picture of appellate briefs is an appellate brief the party who is bringing the appeal the and so this is part one of this presentation part two of the presentation which we'll do next time we'll focus on the appellees brief the appellant reply brief and so forth so we're going to cover today some things that will be relevant to not only the Apple the excuse me at the appellate brief but also briefs in general and so I'm going to move to that under the heading of the basics and a few few moments but after we kind of hit the basics what we're going to focus on today is strategy and some of the details involved in presenting appellate briefs so moon to that slide that's entitled the basics I have mentioned in this course before the importance of legal writing in appellate practice and hopefully you've received accurate instruction on legal writing you've been told that you're a good legal writer or you know that you're a good legal writer and because that's just a critical tool in appellate practice there are not many appellate practitioners to dictate their briefs do a sort of our stream-of-consciousness most of us are very careful and thorough and how we prepare briefs and it goes from you know starting out with ideas or outlines and sort of drafting an editing process and I mean might as well also be a good editor because that's something that we'll get into a little later in the course today but let me focus just for the moment on legal writing being a good legal writer again it's something that really if you don't have that skill you may be the best bullet oral advocate there is but as I said briefs are significantly more important and oral argument and so I would suggest to you that you either work on improving their legal writing through taking workshops Brian Garner has an excellent workshop entitled the winning brief and he is of course an authority on legal writing there are many many other resources to draw from to try and improve your legal writing if that's something that you'd perceived as a weakness and so moving on from that point you know there's a reason why briefs are called the briefs and it sounds like a cliche but judges universally until appellate wears briefs should be brief my personal approach to that issue is if I've got a fifty page limit which is generally the limit in state court in Texas I will almost never go beyond about half of that so if I've got a two or three issue case I've got a fifty page limit I'm gentle and aiming for 25 pages for a couple of reasons but not the least of which is the judges really don't appreciate briefs that are overly long where they don't have to be one of the marks of a skill appellate practitioner is to be able to take a case that's very complicated Whittle it down to the bare bones that present those in a very coherent abbreviated way so that the court can understand the issues understand the facts understand the law and make a decision based on that presentation in writing briefs really one thing to consider is who your audience is that's one of the most foremost considerations is who are you writing for and while it's tempting to write briefs that will be pleasing to the client you know attack the other side and show how that judge was just ignorant of the law that's really not an approach that will be received favorably in appellate course right for the audience of appellate justices who are looking at two sides of the case and whereas your side may see it as being a slam dunk well you know the trial judge just got it wrong the old adage that there's two sides to every story it's true that appellate practice as well so you know one one approach to this enough I'll skip to the end of the slide and just just to mention it is to try and be helpful to the appellate court rather than quite so adversarial in other words there's a trend and and moderate appellate practice and I think this has probably been true for many years it's that people are actually talking about now toward presenting yourself as an advocate as being helpful to the court and helpful in the course decision-making process rather than as you might be in a jury trial quite so adversarial you know pointing fingers at the other side or pointing fingers at anybody you know a witness and so forth so consider your audio your audience is and trying to write something that would be persuasive to that audience and that'll take you a long way and then finally on this slide it's critical to use proper site form some folks may think that that's something that just Lara V dorks worried about that is not the case at all the judges generally know a proper site forum is their law clerks or briefing attorneys generally do as well because most of those folks hmm have been on the Law Review in their respective law schools and many of folks who are interested in appellate practice participated in law review and that may have been what got you interested in doing this kind of work a brief that does not show knowledge of proper site form is less credible than a brief that does it sounds ticky-tacky and actually somewhat ignorant but I'm here to tell you that when I read a brief that shows a little act of knowledge of proper site form I instantly think that this person is not as capable and kids as they as they might otherwise be even if they are very bright very articulate and so forth but they don't seem to know the rules such as they are there is room for disagreement on this issue certainly room for disagreement about what is proper sight form and what is not and whether you should be you know all that concerned about proper sight form following a blue book if you have a state equivalent of the blue book my view of it is why even open it up to debate as to whether you are a a skilled appellate advocate if you will just follow the blue book follow the local conventions for citations for local cases if there are any and then you sort of remove that issue altogether from the equation and you can focus on your advocacy skills and representing your client the next slide continues discussion of some of the basics for appellate brief writing don't assume that the justices know what the law is although they very well mind you know one way to approach running appellate briefs generally is to write it to an intelligent but uninformed audience and because judges even even though they've probably decided many many cases and their career judges don't always know every aspect of the law either so there may be some very fine point on summary judgment procedure that a judge sitting on your panel happens to draw the opinion isn't aware of or hasn't heard of or if you're dealing with criminal cases you can have a judge who has focused on civil practice through these or her career and needs a little education on what the law is so I think a good rule of thumb to follow is know that you're writing for an appellate justice but also write the brief in such a way where an intelligent person who is not inform on that particular topic could understand it and then could move on from from your explanation of the law to how the law applies one thing that you see pretty often in appellate briefs is they need to refer to parties by some shorthand reference such as when you've got ABCD EFG corporation or you know John Doe appellant Jane Doe appellee the easy thing to do is to create what I call alphabet soup and to say ABC corporation or usually it's not even something that flows off the time like that it's you know ECT as being the shorthand version of whatever the company's name is that is something that appellant appellate judges routinely say that it is distracting to them and they as they read appellant briefs appellate briefs appellate briefs I should say just generally and so it's something really to try to avoid if you can unless you've got you know like the IRS an entity with a very recognizable abbreviated name using letters I would try and stay away from that instead those use the IRS as an example of something else you might do to try and short shorten that and referencing the party throughout the brief you could say Internal Revenue rather than you know the Internal Revenue Service throughout the entire brief so you know recognizing that there is often a need to try and shorten references to parties names trifle up with something that is gonna be understandable and easy to follow but doesn't just throw a whole bunch of letters at the core so that it can get kind of confusing and judges also routinely say you know refer to the parties by their names especially if they're individuals so instead of saying appellant contends blank blank blank you know to say doe after after explaining who John Doe is say you know Doe contends blah blah blah and that way you know you've made it clear you should make it clear early in the brief who the party is but once you do that and these judges are generally intelligent people and they'll be able to follow it if you just refer to the parties about their names rather than the procedural designations it makes reading the brief a lot a lot easier and a lot more comfortable it makes the process go more smoothly as well editing that's probably something that everyone watching this has heard about before a big part of brief writing is editing Briar honor refers to writing as sort of a couple of different phases the first of which is the madman phase where you just put everything on paper that possibly comes to mind and the way to take whatever brilliant product might come out of that madman writing phase is to edit that and reorganize it and put it in coherent terms that makes sense to the appellate judges and so you know you should go through multiple editing phases even if you don't follow Garner's approach per se you in a more linear way I can't say enough about the time that should be spent on editing briefs it's one of most important processes you can go through to catch errors and your work choice you'll decide that you should say something a little differently to be consistent with a certain case that you're trying to emulate or is overall you know shorten the brief and improve it and make it more readable so edit edit is this the adage or the match for the lay down there and one one thing that maybe sometimes sometimes kind of a luxury especially for solos is to be able to put the brief down for a few days before it's actually do you're gonna file it and work on something else for a while get your mind off of it and come back during the editorial process and and having laid off of it for a little while I'll give you some have you be able to step back and have a little different perspective on the brief and because if you're like me if you look at something you know over and over and over again pretty soon your eyes starts to kind of glazing over it and if you get away from that for a couple of days I think it helps the editing process a lot if you're especially through the only editor of your work product product to be able to attend a put aside for a few days and come back to it and the next slide the final slide on the basics I'm kind of a related point another way improving the editing process overall is to have someone else actually proofread and edit the brief if you have that luxury if you have an office mate your significant other it can be even useful if the person's not a warrior because it goes back to that whole idea that I was getting out earlier about writing to an audience that's an intelligent sophisticated person who's uninformed about that subject matter if if you can explain a complicated legal issue in terms that a layperson understands then I think you're doing a great job so if you've got a lay person available to you especially one knowledgeable and English it's a it's a tremendously useful thing to have you might have a legal assistant it works for you that person can be a good resource for proofreading and and I mentioned specifically cite checking as well because although that may seem like something of a luxury it's something that we should all try to do to have a third party and pull our cases make sure the the case citation you know the case names are right as the cases are signed and make sure the reporter or citations are correct and make sure even that the jump pages or the pinpoint citations are correct because these are things that also play into credibility and how the justices on your appellate court in your case we're going to see you as if you're consistently signing cases and correctly if you're consistently providing TenPoint sites or jump sites that are wrong or that don't if you haven't included a parent that will don't take the court to a place in that opinion where it's apparent that what you're what you're arguing is directly related to that case in that case is helpful to you that is something that's going to negatively impact your your credibility with the court and overall be something that has an adverse effect on your client in your case so sites checking proofreading very important in my practice I've always made a point to send briefs outside for copying I'm sure that if I chose to sit down and stand by a copy machine and make all the copies that were necessary use a binder and actually physically bind the briefs I could do it but there are litigation support copy places this is what they do they've learned over time to till with lawyers and their usual last-minute deadlines and so if you haven't found one ask some of your friends for a copy shop that they can recommend to which handles litigation matters those folks are really well equipped to put your brief together for you on a relatively short turnaround it's especially useful if you get to know a little bit and communicate with them about what your needs are if you're kind of references four types of cover if you use tabs that kind of things sometimes they will be able to lay those things out ahead of time which will expedite the overall process of completing your brief so you know it's a time saver for you it's an investment in money that hopefully you know the cost of that you can pass on to your client it's just a cost of doing business but I would certainly recommend anyone for doing appellate practice have their briefs copied it down professionally when you get up to the US Supreme Court of course you don't have a choice that the Supreme Court has very specific rules on how briefs will be presented and printed and all that good stuff but most state courts in federal courts certain courts are not quite as strict but just you know what the local conventions are follow them and have somebody else do it for you and then of course I will stick to my my mantra of no and follow what your jurisdictions rules are I've also mentioned local practices I hear as a situation in terms of putting together briefs where local practices can be grand for it so know what the rules are know what other practitioners in your area you look at all you're doing and maybe even if you can go to a seminar if you're somewhat unfamiliar and use breaking into the practice area go to a seminar that talks about pella practice and specifically you know trying to learn what fellow practitioners in your area do as far as preparing briefs and what what the norms and conventions are now so those are some sort of broad perspective points about briefing in general I'd like to move now into the the idea of preparing an appellant brief you are you are taking up an appeal you've perfected appealing through notice of appeal or equivalent you've got the record in now you're sitting down to prepare the appellant brief what are some of the things that go into that that you need to be mindful of and the first one we've got a slide entitled issue selection that's an extremely important exercise to go through preparing an appellant breathe that observation will apply also to appellees and we'll come to that in our next lecture but issue selection you know is a critical phase I think it's commonly accepted along and appellate practitioners and judges in this day and age that really you ought to limit the number of issues or points of error that you're raising to two or three if you can anything more than that and the judges their eyes start glazing over and they start saying okay you know we've got a brief now with ten issues or ten points of error raised how many reversible errors can you really have in a trial probably not ten so that's one reason why the courts like to see a smaller number of issues and sometimes you honestly have to make difficult decisions in working with the trial lawyers and what can the end client on what issues were gonna go away I've had to do that many many times and explain you know mr. trial lawyer on this client well I know that you are you were really offended by the fact that this evidence got in or this evidence was excluded the standard review for the admission of evidence is going to be so high you've got so many other important issues in the case we need to really focus our on the issues that have the greatest chance for success and changing the outcome on this case and 95 times out of 100 I would say evidentiary error is not going to get it done so if you've got other points you know that are stronger Oh certainly guide the client away from the weak points and help focus on the points that are gonna give you the greatest chance for success most often that's a couple of three points at most there are different ways of phrasing issues and I've done I've used a variety of these approaches you see basic basic issue statements or questions like the one I say that you should avoid here at the bottom of this slide did the trial court error by granting summary judgment for the defendant well that that states an issue but it doesn't tell you anything about the case it doesn't tell you what the law is that the court the appellate court is going to be getting into if there's some nuance and summary judgment law it doesn't tell you if there's an evidentiary issue if the law is settled and the trial court dismiss applied the law it really doesn't give you any information about what the case is about it's just extremely dry so there are there are better ways of phrasing issues than that simple statements for questions can still work just fine if there are if there's some additional information weaved into it into those or there's another concept it's another Brian garner concept called deep issues and really which one of those you use is largely a matter of preference and whatever the local requirements are for your appellate courts some some courts right into the rules that the statement the issue statement should be short and concise and if that's the case you don't necessarily want to go toward the deep issue which what that is is a couple of sentences one or two sentences explaining you know very briefly what the relevant law is or what the key facts are followed by a question but then poses the issue for decision on that one point and so if you move to the next couple slides you'll see what I'm getting at is for us a simple statements versus Steve issues I've got some examples here first the first one of those is these are what I would consider to be effective simple issue statements they're not deep issues and that they're not written this it's more or less like syllogism as which the next slide is an example of deep issues and you'll see what I'm talking about a few we move to that but these kinds of issue statements are much more effective for example did the district number one to the district court correctly enter summary judgment against all former employees on the issue of protected political speech when the county's motion limited that ground for specific plaintiffs and the rest received no advance notice that the district court would rule against them on that issue sua sponte all right that tells you a whole lot more than did the trial court error about granting summary judgment for the defendant it gives you a sense of what the case is about the basic issue that's in front of the court with respect to that procedural the claim it's a summary judgment you know that the district court granted it you know that they're from looking at this issue that involves a question of protected political speech that the county move for summary judgment but that there is a perceived procedural problem with that that motion and not all plaintiffs were pointed out in that motion as being subject to summary judgment and so these are just some examples and yes it's from the case that I've worked on those are the easy ones for me to grab I have as I said I've done it both in terms of ordinary simple issue statements where I try to get into some detail and then again the next slide of deep issues you know in there are there's a lot of debate on which way is the right way and you'll find that over and over an appellate practice what's right should you put footnotes and in the briefs to jeeves use footnotes for your citations or C should you cite in the text for every observation like that there is a sharp difference of opinion and I think largely it comes down to your preference as an advocate I think that's largely true for how you phrase issues with one exception and that is if your core your appellate court has a specific way that it wants it done and that's reflected in either you know the rules of appellate procedure that you're following weren't local rules which I would as well but this slide has a couple of examples of deep issues where it follows the syllogism type approach there's some background information provided and then it works up to the ultimate question and here did the district court abused its discretion by awarding the diverses parties seventy nine thousand six hundred and thirty one dollars in attorneys fees as sanctions against 360 training that probably could be a standalone issue but without the context that you put in front of it it's not quite as effective and the other thing that I think people believe about deep issues is you really get into an opportunity to try and start persuading the judges early by presenting issues this way if you tell the judge is more or less here's what the law is and here's a brief statement of the facts in our case and here is the question you're suggesting to the judge what the answer should be and there's a lot of value in doing that early in the appellate process because you you want the court to find your brief to be persuasive so the next slide tables and indexes aside from how you phrase the issues this is actually you know one of your first if not the first opportunity for you to show some advocacy to the court you know correctness and formatting site form and so forth like we've discussed a little bit earlier is very important the court is going to turn to the table of contents in your brief this was one of the very first things that looks at and within that table of contents it's quite effective if you restate your issues and if you reproduce your argument outline because what that does is it gives the judges a preview into your case and gets them sort of kick started thinking about the issues that you're going to be talking about in the law that's related to that and so I view the tables and indexes is something that's critically important being one of the first things that the judge is looking at as far as timing of preparing these I've included this first but it along with the summary of the argument the table the table of contents and mix of authorities or table of authorities that can be called depending on jurisdiction is one of the last things you ought to prepare because the body of your brief is going to be changing throughout the editorial process you might change your your headings you might change the order of your argument you might change what cases you cite and so it ought to be the tables and indexes ought to be one of the last things you do before submitting the brief for filing I have here on the next slide a sample table of contents is from one of the briefs that I used earlier in providing an example of the issue statements and deep issues more particularly so I mean this this is just the first half of the page basically because of the limitations on the size of these images and the slides but you get the idea about you know what it is the whole goal here is to try and sort of signpost for the court what's in the brief and how the argument is presented and you might want to do this anyway but many many sets of appellate rules have set requirements for the things that are going to go in the table of contents and the index of authorities and so be sure you follow those as well but you can see from this example that you're sure you're sure following a progression on how the argument is structured if you can see the whole page and see even better the next slide is a sample table of authorities there are different ways of presenting these I usually present a case case law or cases statutes and rules and then other authorities under headings like that like you see the cases heading and bold here the way that I present the cases I've seen many other people do this the same way is to have the case name on one line and followed by the rest of the site and then it on another line if anyone how long the case is you might have to split that onto the third line and then of course you've got references to the pages in the brief where those cases are cited you know but a court can look at this quickly and immediately ascertain whether you're someone who knows how to sign a case because you've got all of your case citations and all your statutory and another authoritative references in your table of authorities and you know if the court wants to know well Celotex facilitates case that's a seminal case and Cermak judgment in federal practice i want to see what they say about that and they know a court knows what page to go to to get to that let's talk about the statement of facts the statement of facts is your opportunity to tell the court a story and to really get the court's attention and help the court understand you know what what are the significant facts of this case it's sort of an art form in itself preparing a statement of facts because you've got you know quite often a very large record and if you've got two or three days worth of jury trial you can have you know a very voluminous record with a lot of testimony and so what you have to do is figure out you know what are the important facts in the case and so I've got written here to think thorough but short just enough to cover what's necessary to understand and decide the case that's what I would recommend because you don't want half of your brief to be made up of a statement of facts a good good amount of which is really not relevant to the issues that are involved in your case appellate judges I think universally or almost universally say tell us what we need to know about the facts don't tell us a lot more than we need to know because you know as the judges read through the facts statement they don't really know yet what's relevant and so by providing a lot of extraneous facts that aren't necessary it has a tendency to confuse the judges or at least raise some issues about what's important what's not the judge may spend more time on unimportant facts than they ought to and so it's it's really quite critical I think to be thorough but don't include a whole lot more facts than what are absolutely necessary to decide the case another critical issue is you need to just be upfront with your bad facts you know you can't sort of draw the sting away from bad facts by including them in your own statement of facts as an appellant and I think that's a big credibility enhancer with an appellate pillar core if you are willing to confront the bad facts in your case and deal with them then you know the other side can't beat you over the head quite as effectively with those bad facts you've already had you've had an opportunity and taken advantage of it to sort of sort of shape the appellate court's view of what those bad facts are and how they ultimately impact the case and you also have the opportunity to sort of minimize their overall impact on the broader story that you're telling in this statement of facts and so disclose the bad facts you don't want to write around them too much you want it you want to confront them and you don't want to dwell on them too long which you want to at least make reference to the main knowledge they exist in that that will help you overall in your effectiveness as an advocate and that really I think applies to both the pellets and that police equally the other thing about a statement of facts is you know this is not really the place to be arguing our rules in Texas actually say state the facts you know plainly and concisely without argument and I always get a little bit irritated when an opposing counsel decides to start arguing their case and throwing in case citations in the fact statement because there's really you know this is not the place for that the place for that is your argument section so with that said though there's absolutely nothing wrong with shaping the story in a way that's favorable to your clients position as long as the record will support what you're doing you know you can you can take that opportunity also to apply some persuasion techniques to the appellate court hopefully to help the court see the case your way move to the next slide standard to review we've talked about these a little bit and previous presentations this is really where they get to be important as in brief writing certainly important in you know evaluating appellate matters but here is where you you've got to show how standard review what standard of review is and how it applies particularly from the appellant perspective too often I see appellate briefs written that don't even reference the standard or review that just say well here's the law and here's what happened in the court area and so therefore appellate justices you should reverse that's really not an effective approach appellate judges live and breathe standards your review and by that I'm talking about things like a piece of discretion plain error and a lot of federal cases de novo and many summary judgment cases and in other cases you know sufficiency of the evidence would be another one you've got a you've got to acknowledge what the standard is based on your particular issue that you're presenting to the court and you might have to in doing that if you've got two or three issues you may have to lay out two or three different standards for review you can do it effectively in a separate section that just lays out the standard or review overall particularly if it's one standard that you're applying or you can depending on what your local rules say you can incorporate the standard review into if you've got three issues in your head handling under three Roman numeral headings you can just insert a standard review discussion at the beginning of every one of those and I think that's an effective way also bringing the issue of standards review to the court's attention and laying out what the standards are so as I referenced in the slide here you know incredible appellant brief is going to not only address them but it's going to embrace the standard review because you've got to demonstrate to the court why it is that your case jumps that hurdle and that's frankly that's what standards review are you know when you get into something like a piece of discretion or plain error the the Court of Appeals is giving a lot of difference to that village or the trial judge and so you have got to jump an exceedingly high hurdle to demonstrate why whatever it is that the trial judge did was erroneous and why you should get either a different outcome directly in the court of appeals if the record and the law supports it or why you should get the case set back down to try again try to get a better out kind of for your client and then the last point on Stan's review that I'm where to make for today is it's really not enough to tell the court you know what the standard is and reversals warn too you know because the standard is met you have got to demonstrate why the standard has been met so in abuse of discretion cases for example one of the hardest standards to me you know cite the court with cases other cases where in a similarly similar procedural posture appellate courts have held there would be an abuse of discretion that's an effective way of of making that point think hard about how it is that you could persuade this appellate court that this is a case where the standard of review has been exceeded and that therefore ought to grant you the relief that you're looking for all too often I think lawyers generally but a pillow are no exception say well a plus B so therefore C well that's true that may be true but a plus B you know providing some additional explanation and ultimately leading to see the the conclusion is much more effective than just trying to allow are trying to have the appellate justices figure it out for themselves let's just shown why the standard reviews the net on the next slide talk a little bit about summary of the argument pretty often this is a required section in appellate briefs and even if it isn't you probably ought to include one because it's one of the things that the judges look at first along with the tables indexes just like the tables and indexes the summary of the argument is something that ought to be prepared toward the end of the briefing process maybe even after you've gone through some editing maybe after even you've put the brief aside for a few days and the reason for that is you know it's I think helpful to to see everything that you're going to present in the brief and bring it all together in a very coherent a few paragraphs doesn't even have to be long distill it down to the bare bones of the argument but including enough information so that you can buy the appellate court by reading this section knows what the case is about and gets an idea of maybe even of how it might come out so again it's you know the argument not only the arguments section that we're coming to but the summary of the argument is a very important opportunity to persuade the judges by telling them you know what your case is about and nudging them toward what you want the outcome to be all right the meat of an appellate brief as we go into in the next few slides next couple of slides is the section on argument Authority and there's really I don't think much debate anymore about how to approach this generally in terms of the order of your arguments if you've got a couple of really strong arguments and one that's it's you know what you should include but it's not as strong you don't want to include your stronger arguments first and I think generally you always want to lead with your strongest argument the one that's best for you on the facts and the law if you can now you know there's some exceptions to that rule such as when you know one of your arguments leads to rendition of a judgement in your clients favor if you win another one leads to remand for a new trial which wouldn't be as good a result as a rendition of judgment for your client from the appellant perspective so sometimes you have to make some judgment calls about which one of those go first obviously you want to try and get a rendition when you can so you might if the arguments are pretty close together in strength you know you're probably still going to want to put the rendition point first even if it's a little bit weaker because that's the one that could get you the best possible outcome and frankly if the court goes your way on that it may not even reach any of the other issues so that's something to take a look at closely briefs need to be thoroughly researched the Lugg need to have a very firm understanding of what the law is that applies not only in terms of the standard review but the substantive law and my view of how to present authorities in a brief is you should rely on the strongest authorities that you can find for example in a state law case cases from the Supreme Court or the highest court in your jurisdiction generally that's you know rely on those whenever you can and then after that what I like to do even though they're not necessarily a greater weight is trying to cite cases that were decided by the court that's deciding the case in front of it you know the case you're bringing up on appeal for example in the Court of Appeals here in Austin you know it may have read the law of summary judgment for let's use jury charges as an example to just go to a different area the Austin Court of Appeals may have read the most recent Supreme Court case addressing jury charges the same way as the Dallas Court of Appeals but if you've got a decision out of the Austin Court that applies that rule and signed it as opposed to signing the Dallas case you know the Dallas case is probably just as good on the law but the Austin core if it's a panel of digits from that court that are designing your case are probably going to be a little more persuaded by a case of out of their own core then one from a couple hundred miles up the road so you know you don't have to put in long string sites if you've got a settled legal issue if you've got a definitive authority there's probably not a need to you follow the law review convention site case after case with secondary sources that provide the court with the strongest strongest authorities that you can find on that subject and then much like with confronting bad facts you need to confront we the weaknesses in the case and authority that goes the opposite way and it's the same principle as what we talked about in a statement of facts you need to show why your clients position overcomes those bad authorities or bad facts and you gain credibility with the appellate court in the process what you don't want to have happen is you slip over and hope that the other side doesn't notice that this case that really speaks to the issue that you're working on so you don't raise it in your brief as an appellant and then sure enough the the appellee in their brief says well the appellant you know ignores so-and-so case which is on point and authoritative and in fact this positive worst-case scenario for you as an appellant and that that really makes things look bad for you as an appellant if you if there is a definitive case out there you don't acknowledge it confront it address it deal with it front and explain why it is your case is different that's a I think that's a market of good advocacy to be able to even embrace authorities in fact that of unfavorable for your side and deal with the and this also plays into the whole idea discussed at the beginning today of a approach of helpfulness to the court you know I think by acknowledging negative Authority or bad facts you're helping the court to choose between the two sides of the story you know one thing that's unique about appellate judges is that you know they don't get to just read what's what's written for them for pleasure they have to decide from sometimes two very two clashing views of what the facts and the law are essentially who's right and so the more you can present yourself as someone who's an advocate for for one of the sighs yes but also someone who appreciates what the appellate courts perspective is and is trying to help the court and make a decision I think that benefits you and you ability as an advocate ok the next slide we're still talking about argument authorities you know the legal writing teachers will tell you this and I think it holds true now you want to break text up don't go more than a couple pages without some kind of bold heading in your text studies show I think that it helps to re-engage the the readers attention to what you're reading if you do that it also I think really helps if you have difficulty making transitions from point to point a good substantive heading can help Telegraph where you're going next and I think it's something that is very useful in the poet brief I personally use Roman numeral outlines with such a B and subheadings after that if appropriate and I think that's a infective tool in organizing Greece this is something honestly this yacht is that going to do pretty early in the drafting process let's figure out what your what's your brief going to say what's your outline gonna be what are your you know if you're if you have three issues what are your how you gonna phrase those three issues in terms of headlines headings in your brief and then what supports do you need to make under those to help come up with a very logical flow that goes throughout the brief that the judges can follow and so outlining a brief as part of the writing process is is very important something else you want to do that I think makes for effective advocacy is you know we've we've the facts into your argument notice rely on your statement of facts to lay the facts out and then say statement of facts argument law result weave into your argument the critical facts and you'll know what they are by the time you've drafted the statement of facts with the law in mind already I would assume weave them into your legal argument and a big day extremely persuasive as far as footnotes are concerned I don't I won't say never use them there they certainly have their place and again I don't want to get into the debate of whether you should use citational footnotes versus citations in the text my personal preference is to cite it in the text because you know one side of that debate is you have the judges who are you know getting read the text if you're down to fit not to see what the authority is to go back next foot enough to get me go down and it's pretty disruptive I tend to agree with that so I usually put my citations and the text but footnotes you know if you've got a point that isn't really directly related to what you're arguing but is something that you want the judge to be aware of it's okay to drop a footnote and put that they're just if it's a substantive argument that you're making most of the time if it's worth them in that at all it's worth including it the text maybe you need to break it up into a separate paragraph maybe you need to break it up into even a separate section in the brief and you know maybe you wind up not including it because you don't conclude ultimately that it's it's important enough to include in the text so I would just other state of preference that generally you should avoid so some the footnotes if you can alright next slide moving on to and we're starting to wrap up now the relief that you're requesting in the brief you need to consider very carefully what it is you want the court to do when you conclude what that is ask the court very specifically to give it to you don't just say you know the appellant respectfully prays that the court reverse the trial court's judgment period that's not enough you're going to know from having researched looked at the law relevant to your case whether you have a chance of getting a judgment rendered for your client in your clients favor on the appeal usually that's going to involve some kind of pure legal issue or evidentiary issue where your clients conclusively established its position it doesn't happen all that often or it could be that your European defendant and the other sides put on exhibits and the conclusion to be reached on appeal is that the evidence was legally insufficient so therefore there's no point in going back and trying the case again so you win you get judgment for your client but there's nothing wrong if it got especially they've got different arguments that would lead to different forms of relief to requesting that relief and the alternative so as the appellant he should ask for you know reversal and rendition of a judgement favoring your client if you can get it reversal or possibly reversal and modification of the district court reversed judgment which would be more favorable to your client than any trial possibly or reversal and remand for further proceedings such as a new trial you know what one thing that all appellate practitioners should be keenly aware of is what the different possible outcomes of an appeal are what the different possible combinations of types of relief could be in hello judgment that's probably going to be included in your your rules of appellate procedure for your jurisdiction but I think if you haven't already become aware of what kinds of judgments your courts of appeals where you practice can render I would I would take 20 minutes and familiarize myself with that issue because that's going to come up repeatedly for use in the pillow practitioner and every brief you write you're going to be asking the court to do something even if you're the appellee and so you need to know what it is that the courts had the authority to do in rendering their judgments on the next slide entitled sample briefs I do have a JD super profile and I won't go into explaining the details of what that is many of you may already know but it's linked here in this slide and there I have probably right now four or five full-blown appellate briefs that I've done there is posted to that profile to the JD super site that's not nearly enough I'm going to be adding a whole lot more work product to that site and the next month or two but what I wanted to do here was just let everyone know if you wanted to see how all this fits together from from cover to back as far as a pillow Brusco feel free to take a look at that site where I've got this posted and you know I'm not perfect and I know there are some errors and some of those briefs but those were what I was able to put together and file and if you have comments on them I'm certainly happy to hear take a look there as always if you've got questions during cottony and give me a call during office hours please send questions for the official study group I've gotten I've got one that has to do with marketing and appellate practice that's been posted and some some ideas there and we will definitely get into that at the right time and that otherwise you know I welcome your comments and questions there on the the official study group site or the appellate discussion lounge so next time we've the last slide we're going to do is class number five which is the second part of preparing briefs as I said we will focus in that class on the appellees brief and appellant reply brief and a lot of the principles that we've talked about today will apply to those but there's a little bit different perspective when you're responding directly to what other folks have written and so we're going to focus on some different strategic issues that come into play and doing those kinds of briefs and then we'll move on from there to the latter of topics in the class so until next time I thank you for your attention and we'll see you soon Thanks