Federal Appellate Advocacy Handbook 2017 by Kelly A. Zusman

Federal
Appellate
Advocacy
By Kelly A. Zusman
© 2017 Kelly A. Zusman
Appellate Advocacy Page 1

Table of Contents
Introduction 3-4
Federal Appellate Courts 4-5
The Appellate World 6-8
Standards of Review 8-10
Strategic Considerations 10-11
Using the Trial Record 12-14
Creating the Appellate Record 14-15
Drafting the Appellate Brief: Rule 28
Writing the Brief: Step-by-Step
A. The Jurisdictional Statement 15-16
B. Issue Statements 16-22
C. Statement of Facts 22-33
D. Summary of the Argument 33-36
E. The Argument Section 36-50
a. Introduction
b. Argument: Standard of Review
c. Argument: CREARC
d. Argument: The Body
e. Practical Pointers
i. Avoiding Repetition & Block Quote Protocol
ii. Examine the Premise
iii. Using Case Authority
iv. Explain the Options
v. Maintain a Respectful Tone
F. Conclusion 50
G. Editing 50-54
Oral Argument 54-60

Introduction
Imagine that you are preparing for trial, and you are 95% certain that your trial judge will permit
you to admit certain evidence under Rule 404(b). You are convinced that you have a winning
case even without the evidence, but this will undoubtedly put your case over the top. An
appellate attorney on your trial team tells you that your Circuit disfavors 404(b) evidence in
cases of this kind, and that your chances of reversal, should the case be appealed are 50-50.
What do you do?
Now imagine that you are standing at the podium defending your case at the court of appeals.
The judges are asking why, given their precedent, did you introduce 404(b) evidence? Do you
have an answer that will satisfy the court?
Winning at trial is terrific and it makes clients very happy. But such happiness is short-lived if
your case is overturned on appeal. The fact is that top-notch trial attorneys need to know the ins
and outs of appeals to ensure that their cases stay in the "win" column. And most good trial
lawyers will handle at least a few appeals to gain this insight. Appellate work is an important,
and integral part of the litigation process. This book will describe the process and provide a step-
by-step guide to handling an appeal in federal court.
Most of the material in this book was compiled and created as a result of the Appellate Advocacy
Courses and the National Advocacy Center in Columbia, South Carolina. Several Assistant U.S.
Attorneys (and former AUSAs) who teach that class have contributed either directly or indirectly
to this collection: Doug Letter, Anne Murphy, Anthony Steinmeyer, Michael Robinson, Wes
Hendrix, Amy Ray, Kevin Ritz, J.C. Andre, Sandra Glover, Ben Glassman, Eric Wolf, Rob
Ellman, Elizabeth White, Barbara Valliere, Dave Hollar, Suzanne Miles, Syrena Hargrove, Sonja
Ralston, and David Lieberman. And a special thanks to Frank Lin, a University of Oregon law
clerk for our office (now a DOJ Honors Attorney), for his edits.
.
Writing – a lot – is the best way to become an effective, successful legal writer. But to improve
one’s writing requires rigorous review and critique, otherwise we can adopt bad habits that
become difficult to remove. Writing is a particularly difficult subject, however, to teach on an
abstract basis. I have been teaching legal writing for over a decade now, and have found that
talking about writing lacks staying power – what works is to provide specific, realistic, case
scenarios, have students write briefs, and then edit and provide constructive criticism.
But tossing students into a case without any direction or advice is also doomed to fail. Writing
projects that generate too much constructive criticism can also backfire. Many of us can only
take so much critique before we simply shut down.1 And for law students and younger attorneys,
1
“Asking a writer what he thinks about criticism is like asking a lamppost what it feels about dogs.” -- John
Osborne. Author Anne Lamott describes in her book “Bird by Bird,” the arc of emotions that she experiences with

a good portion of the time it takes to draft a good brief involves mastering new subject matter. In
the beginning we have to spend a greater percentage of our time learning the material, and with
deadlines, that necessarily means that we have less time to devote to improving the quality and
structure of the writing itself.
As a judicial law clerk, I was constantly learning new and unfamiliar areas of the law. For
instance, I had never taken labor law in law school, and had to find a hornbook to discover that
“ERISA” is a federal statute governing retirement benefits. The written work that I produced for
judges attempted to demonstrate to the parties that the court had a sufficient handle on the
applicable law, that the judge considered all of the relevant facts when conducting his reasoned
analysis. Judge Malcolm F. Marsh (my judge) disliked flourishes or editorial commentary – he
liked plain, simple words and short, comprehensible sentences. He wanted his opinions to be
read and understood by the clients, not just the lawyers.
Writing judicial opinions forces the writer to focus on why and how the court reached a
particular result. The better the explanation, the more solid the foundation will be for the opinion
on appeal. And the best explanations tend to be the simplest ones.
Simplicity is also an effective theme for appellate brief writing. But former law clerks do have
to shift their focus from that of a purely neutral, detached audience, to that of an advocate.
Advocates don’t decide, they persuade.
All of this led me to conclude that while the best way to become a good legal writer is by
writing, editing, and receiving critique, there are some basic principles that apply to putting
together a good effective, appellate brief that may be useful to know before beginning the work
of handling an appeal. And this book endeavors to provide some helpful guidance for new
appellate practitioners (or a re-fresher if it has been awhile since you’ve handled an appeal) by
employing the principles it espouses – clarity, brevity, and thoroughness.
Federal Appellate Courts

Federal appellate practice largely takes place in twelve different circuits: the first through the
eleventh, and the D.C. Circuit. Each circuit includes anywhere from three to nine states. The
Ninth Circuit Court of Appeals is the largest – geographically, population-wise, and case load.
The Ninth Circuit represents approximately 40% of the federal appellate workload. It includes
nine Western states, as well as Guam and the Northern Mariana Islands. There is also a Federal
Circuit (covering patent and certain government claims), a FISA court of appeals for national
security issues, and Bankruptcy Appellate Panels.
critique: “My first response if they have a lot of suggestions is never profound relief that I have someone in my life
who will be honest with me and help me do the very best word of which I am capable. No, my first thought is,
‘Well, I’m sorry, but I can’t be friends with you anymore, because you have too many problems. And you have a
bad personality. A bad character.”

Because it is the largest circuit, and because it is where I practice, throughout this book I refer to
Ninth Circuit specific rules and practices as examples. The bulk of the book, and the tips and
advice on brief writing and oral argument are, however, universal. Fortunately, each federal
circuit court now has its own website so that practitioners may easily access local rules and
contacts within the clerk’s office.
The Ninth Circuit maintains regular oral argument calendars in San Francisco (the court’s
headquarters), Pasadena, Portland, and Seattle. The Second Circuit hears cases in Manhattan,
and the Fifth Circuit is headquartered in New Orleans. Circuit practices on scheduling oral
arguments vary widely: in the Ninth Circuit, roughly 40% of all appeals are referred to a merits
panel and set on an oral argument schedule. Many of those cases are subsequently ordered
submitted on the briefs, so only about 25% of all appeals are actually argued orally. Of those
cases set for argument, most are given 10-15 minutes per side; more complex cases are assigned
20 minutes per side, and the amount of time actually given to the parties varies widely and
depends upon which judge is presiding and how heavy the particular case load is for a given
calendar week.
The Second Circuit, by contrast, sets nearly every case for oral argument, but the length of
arguments are limited for most cases to seven minutes per side. The Sixth Circuit hears nearly
every case, while the Fourth Circuit is probably the most restrictive, hearing arguments in only
about 10% of all appeals. The Fifth Circuit hears about 25% of its cases.
Appeals are decided by three judge panels, and these panels issue either published decisions or
unpublished memoranda. Published decisions create precedent that binds trial courts within that
circuit and other three-judge panels within the same circuit. A party dissatisfied with an
appellate decision may take one of three courses: (1) file a petition for panel rehearing –
essentially a motion for reconsideration or for an amendment or clarification; (2) file a
suggestion for rehearing en banc before the full court of appeals; and/or (3) file a petition for
certiorari to the Supreme Court.
Petitions for panel rehearing are, like most motions for reconsideration, generally disfavored.
They are most effective when narrowly tailored and proffered to correct or amend particular
portions of an opinion that are unquestionably wrong. Filing for rehearing to simply re-raise
already rejected arguments is unlikely to be beneficial for either your client or your credibility.
Petitions for rehearing en banc require a vote by all of the active, non-Senior judges on the court.
If a majority of the active judges vote to re-hear an appeal, the full court will hear argument and
consider the case anew. The standards for obtaining en banc review are very difficult to meet;
simply arguing that the three-judge panel got it wrong will not suffice. The rules discourage en

banc petitions, and specify that they will only be granted in cases of “extraordinary” import, or
when necessary to address an intra-circuit split or to eliminate an inter-circuit split.
This rule allowing rehearing before the “full” appellate court is modified in the Ninth Circuit,
which has created mini-en banc panels comprised of 11 judges. As of publication, there were 43
judges on the Ninth Circuit bench; of those, 25 are active. That means that a party petitioning for
rehearing en banc would have to convince at least 13 judges to rehear the case. That’s a tall
order, and the court grants less than 1% of all en banc rehearing requests. If the court does
decide to hear the appeal en banc, the Circuit’s Chief Judge will preside and he will be joined by
ten randomly selected judges. The selection truly is random: the clerk’s office uses a hopper
filled with balls (resembling ping pong balls) bearing each active judge’s name. Ten balls are
drawn and the result of that draw will determine the panel. As a consequence, the en banc panel
may (or may not) include some of the judges from the original panel.
Once the court accepts the case for en banc review, it immediately issues an order withdrawing
the original panel decision from publication and notifying the public that the panel’s decision
may no longer be cited as precedent. The case is then re-briefed and re-argued before the 11-
judge panel. Once the en banc panel issues a decision, it is binding on every district and
appellate court within the circuit unless and until overruled by the Supreme Court.
The Supreme Court is also highly selective about the cases it chooses to hear. It grants
approximately 1% of all petitions filed and usually will only hear cases that involve a circuit split
on issues of significant national import (e.g. the constitutionality of “Obamacare”).
The bottom line? You want to win your case on your initial appeal because the odds are heavily
against ever obtaining further review.
Over the past five years, appellate practice has shifted from paper to digital. Now most appellate
briefs and records are filed electronically, and many appellate judges are now reading those
briefs and records on iPads. This shift enables us to file more material, and it makes it easier for
judges to check the accuracy of our citations through hyper-links. Many of us now store and
annotate our appellate records on iPads.
The Appellate World
Appellate work lacks the spontaneity and drama of trial work. There are no witness prep
sessions, no exhibits to play with, and often little human contact. What appellate work provides,
however, is an opportunity to create precedent. Trials mean a great deal to the parties involved
in a case, but often mean little to anyone else. Once a case is appealed however, issues emerge
that have the potential to affect other people and other cases. Published appellate decisions

create binding precedent that will govern or guide other cases in the future. As a consequence,
appellate work often involves much more than a will to win for a client: it involves broader
issues and more expansive goals. For example, a high school student may not want to have to
take a drug test in order to participate in school sponsored athletic programs. He may file an
action against the school district seeking injunctive relief. But it is not until his case is heard and
decided by the Court of Appeals, and ultimately the Supreme Court, that we see a rule of law
emerge broadly addressing the rights of school districts to regulate student conduct within the
confines of the Fourth Amendment. Appellate work is fun and rewarding because it matters.
Most believe that the work of an appellate lawyer begins once the dust settles from trial. The
real work, however, begins with preventing appellate issues in the first instance and assisting
trial lawyers to prevent mistakes before they happen. As a consequence, many appellate lawyers
have found themselves embedded – like news correspondents – into trial teams. These are the
members of the team who ask, “Just because we can do it, should we do it?” And these are also
the folks drafting limiting jury instructions, and researching alternative bases for admission or
exclusion of evidence.
Once the dust from the trial has settled, the appellate lawyer moves from the pit crew to center
stage. Appellate advocacy involves organization, strategy, and a good sense of the appellate
process. Many of the best appellate advocates are attorneys who previously served as judicial
law clerks, so they have a sense of compassion for the decision-makers, and they understand
what is and is not effective. Knowing your audience and tailoring your brief in a manner
designed to be helpful to that audience will make your case more effective and will enhance your
personal credibility with the court.
Your audience consists of staff attorneys who screen cases, judicial law clerks who draft bench
memoranda and opinions, and judges. Staff attorneys typically screen cases and assign weights
(0-10, and 20 for death penalty cases), depending upon the number and complexity of issues.
Oral argument calendars are then built to achieve a certain weight (such as 80 points for a week-
long calendar). In the Ninth Circuit, a case scoring a 0-1 will be sent to a screening panel and
orally presented to a panel of three judges either by a staff attorney or a law clerk. The judges
will either decide the case based upon the staff member’s oral presentation, or if any judge has a
question or concern about the case, it will be transferred to a merits panel.
Judicial law clerks are typically the first audience for your brief, should it survive the screening
process. Some judges have career clerks on staff, but most law clerks are recent law school
graduates. They are very smart but not very experienced. That means that you cannot assume
that a law clerk knows or understands ERISA or the Armed Career Criminal Act, but he or she
should be a quick study.

Your ultimate audience (again, if your case has survived screening) is comprised of a three-judge
panel. Unlike the law clerks, most judges will likely have some familiarity with your area of the
law (unless your case involves a particularly esoteric issue). This means that you will need to
write your brief with both judge and law clerk in mind, and you will need to provide enough
detail about the law to ground the issues, while not going into so much detail that you lose the
attention of an impatient judge. For example, many employment discrimination cases involve
the McDonnell Douglas burden shifting analysis that applies to a summary judgment motion.2 If
your case involves an employment dispute and an appeal from a summary judgment ruling, you
will want to include at least a paragraph describing this burden shifting analysis, but you won’t
want to go into the complete history of Title VII and the cases leading up to McDonnell Douglas.
For the law clerk’s benefit, at most, you might want to tuck in a footnote citing additional
background authority.
Judges are a generally impatient reading audience. The volume of appellate work is immense,
and anyone who has attended an oral argument calendar has likely seen the stacks of briefs and
records that reach several feet.3 Your case may be incredibly interesting to you and the parties
involved, but for the bench, yours is just one of hundreds of cases that they will see and/or hear
this year. You are, in a very real sense, competing for the judges’ attention. That means your
written work product has to be as concise as possible, absolutely accurate (and thus, reliable),
clear, and well-reasoned.
If your client lost in the trial court, the appellate attorney’s job is to look for points of weakness.
Key to this assessment is identifying and applying the applicable standards of review.
Standards of Review
Legal issues are subject to de novo review, which means that the appellate court reviews the
issue without affording any deference to the trial court. For an appellant, this is precisely where
you want to be. And your focus must be on what, precisely, the trial court got wrong and why it
mattered to your case. For example, did the trial court place an additional burden on the plaintiff
that a governing statute doesn’t require? And if that element had been removed, might the jury
have returned a different verdict?
Factual issues – if preserved – are reviewed for clear error, which affords deference to the trial
judge. This means that, so long as there is some evidence in the record to support what the trial
court did, any appeal will not succeed. The central role of the trial court – whether the decision-
maker is a jury or a judge – is to resolve conflicts in the evidence. When John testifies that the
light was green, and Jane testifies that it was red, the fact-finder has to decide whether to believe
2
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
3
Based on case load statistics, federal judges read 42 million words per year; if a judge read briefs 365 days/year,,
that would mean she was reading 115,068 words per day (approximately 8 briefs). New York Times, “Judges Push
Brevity in Briefs, Get a Torrent of Arguments,” Oct. 3, 2016.

John or Jane. Most appellate courts recognize that credibility determinations are best left to
those who see live witnesses because they have an opportunity to observe demeanor and body
language. And express credibility determinations are even better, because they are unassailable
on appeal. In addition, any factual error must be one that mattered for the appellate court to
grant any form of relief. Mistakes regarding collateral issues will be considered harmless. Thus,
if the witnesses described the car involved in the accident as blue, while the trial court called it
green, the court may well have clearly erred, but it simply won’t matter on appeal. For an
appellant to succeed, the error must have been one that made such a difference to the outcome of
the case that a new trial is warranted.
Mixed questions of law and fact – i.e. those issues that require a district court to apply the law to
a set of factual findings – are generally reviewed de novo. For example, whether a suspect’s
consent to a search is voluntary involves an application of factors derived from case law to a
case-specific set of circumstances. The law specifies that the court must examine whether the
suspect was in custody, whether he had been told that a search warrant could be obtained,
whether he was confronted with evidence of guilt, etc. No one factor is dispositive; instead, the
law specifies that the court examine the totality of the circumstances to determine whether a
particular suspect’s consent was given voluntarily. To the extent any of the facts are in dispute –
for example, the suspect claims that the officer pointed a gun at him, while the office claims that
he never drew his gun from his holster – the district court must first resolve this factual dispute.
That resolution will be subject to a clear error standard of review. But once the court decides
what the facts are, its ultimate determination that the consent was or was not given voluntarily
will be subject to de novo review.
The most deferential standard of review is abuse of discretion, and this generally applies to
evidentiary issues, formulation of jury instructions, and sentencing decisions. For the appellant,
these are the issues to avoid because they so rarely succeed. For example, in the sentencing
context, the Supreme Court has emphasized that appellate courts must defer to a trial judge’s
assessment of an appropriate sentence in a particular case. Unless no reasonable jurist could
possibly have reached the same conclusion as that of the trial judge, these decisions must be
affirmed – even if the appellate judges might have reached a different result. This standard is the
soft-focus filter of appellate review – it is one that allows a good number of flaws to slip past.
For any claim on appeal, if the issue was not raised in the trial court at all, the issue will either be
deemed waived or forfeited. Waived claims generally will not be considered, but waiver
requires proof of a knowing, voluntary relinquishment of a right. For example, when a criminal
defendant expressly waives his right to appeal his conviction, an appellate court will generally
refuse to hear the appeal at all. Most un-raised arguments are subject to the forfeiture rule that
permits appellate review only for plain error. The plain error standard is even more generous
than the abuse of discretion standard because it requires a showing that the error was plain and

affected substantial rights. It essentially embraces the notion that objections should be made to
the trial court in a manner that gives the trial judge the opportunity to fix the problem. Only
those errors that are so egregious and unfair – i.e. ones that a reasonable judge should have
spotted sua sponte – will be considered. And the Supreme Court clarified that plain error review
examines whether the error was plain as of the time of the appeal – not when the case was with
the trial court.4
Strategic Considerations: Appellant v. Appellee

Strategically, all of this means that as the appellant’s counsel reviews the trial record, he or she
will want to look for issues of law or mixed issues of law and fact because those issues have the
best chance of success on appeal. That said, the statistics for appellate success are daunting. The
vast majority (well over 90% nationally) of all federal criminal appeals result in affirmances.
Such figures underscore the importance of avoiding appeals in the first place.
These statistics also reveal what is usually the appellee’s best argument: the trial court got it
right. On appeal, it is far easier to convince a panel of three judges that a fellow judge reached
the right conclusion than it is to prevail by convincing the panel that the appellee’s lawyers are
right. With a few, notable exceptions, most federal trial judges are very smart, capable, and
compassionate people who generally do get it right. As a consequence, the appellee’s job is far
easier than that of the appellant, but the work involved in prosecuting and defending appeals is
essentially the same.
An appellate lawyer’s job begins with a mastery of the trial court record, including all transcripts
and exhibits. For the trial lawyer handling her own appeal, the review will be familiar, but
important nonetheless. Anyone who has defended a case on appeal after trying it can tell you
that memories become indistinct: while I may remember that a certain witness told me a certain
detail, I probably will not be able to recall whether I learned that fact during a deposition, trial
preparation, or whether the fact actually made it into the record at trial. And the distinction is
critical: on appeal, it is only the evidence in the record that counts. Anything left on the editing
table of your office cannot be relied upon – only the sworn testimony and exhibits offered and
admitted into evidence are properly part of your appellate record. If the witness statement or
exhibit did not come into evidence at trial, it essentially does not exist for purposes of your
appeal. So, for example, if you are defending an appeal in which your opponent claims that there
was insufficient evidence to sustain a claim or defense, your response is limited to sworn
testimony and exhibits. Arguments of counsel – either in court, pleadings, or letters – are not
evidence.
An appellee’s job begins with a review of the opening brief. This is a pre-requisite to reviewing
the record, because it will let you know where to focus your efforts and what to take note of
4
Henderson v. United States, 133 S. Ct. 1121 (2013).

during that careful review. Trials often involve dozens, sometimes hundreds, of micro-disputes
over the course of litigation. A good appellate attorney will carefully select only those few
issues for appeal that carry the greatest chance of success. While you may have spent a week
litigating a motion to suppress, called 30 witnesses, and introduced a thousand exhibits, if the
appellant isn’t challenging the suppression ruling, there is no need to detail this event in your
appellate brief. Oftentimes, it is the side-issue that may have consumed no more than a few
minutes during a bench conference that becomes the center-piece of an appeal after the benefit of
hindsight and a few hours on Westlaw.
For example, your opponent may have requested a jury instruction that the trial court rejected.
At the time, your opponent simply sought the instruction, but failed to cite any case authority to
support it. On appeal, however, your opponent has discovered a half dozen decisions that
approved that particular jury instruction. So in reviewing the record, you will be looking for
evidence that the objection was properly preserved. If it wasn’t, you’ll want to argue for the
deferential plain error standard of review. If it was preserved, you’ll want to carefully examine
the court’s other jury instructions to see if a different instruction covered the same topic –
perhaps just not in exactly the manner your opponent wanted. In reviewing the record, if you
can narrow the issue to one of wording, rather than substance, you’ll succeed in triggering the
abuse of discretion standard that will require deference to the district court. If, however, the
topic simply wasn’t covered in the instructions, you’ll want to read your opponent’s cases to
determine whether those other courts simply held that it was not an abuse of discretion for the
court to give such an instruction, or whether the courts held that such an instruction had to be
given. If the latter is true, you’ll need to determine what circumstances trigger the need for the
instruction, then assess whether the circumstances in your case are distinguishable.
Another doctrine that is helpful and related to preservation is that of harmless error. Even if a
trial court fails to follow a rule of evidence when admitting or excluding testimony, or it fails to
give a necessary jury instruction, an appellate court will nevertheless examine the error in
context to determine if it mattered to the overall result in the case. Many alternative arguments,
begin with the clause: “Even if the court erred, this court should affirm because . . .”
For both parties, if you are tackling an area of the law that is new to you, your review of the
record will need to be supplemented with some legal research. Until you have a handle on the
substantive area of the law, it will be difficult to know what is or is not important. And because
your opponent will, generally, only supply the court with the cases that favor his position, you
will need to do some independent research to ensure that you have a fair handle on the law.
There are a number of great resources for getting up to speed in certain topic areas. Westlaw and
Lexis offer fast and efficient ways to do legal research, and their databases include hornbooks as
well as case authority and legislative history. For AUSAs, there is USABook, the Solicitor
General’s Brief Bank, and the DOJ Librarian’s staff.

Using the Trial Record
A good record will provide all of the ingredients you will need to successfully pursue or defend
an appeal. Making sure that you make the most of that material is a critical, appellate skill.
Issues, however, frequently shift between trial and appeal.
For example, Roger Clinton was charged with three others with a Hobbs Act armed robbery.
While the three co-defendants pleaded guilty, Clinton admitted that he helped to plan the robbery
but claimed that he attempted to withdraw prior to its execution. The main dispute at trial was
whether Clinton actually withdrew, or whether he merely expressed fear of getting caught that
his codefendants easily assuaged. Clinton was convicted, and at sentencing, the only disputed
issue was whether his sentence should be subject to a ten-year mandatory minimum term for a
firearm count because one of his co-defendants fired a gun at a pursuing police officer. Clinton
argued that it was not reasonably foreseeable to him that a gun would actually be discharged.
The trial court overruled Clinton’s objection and sentenced him accordingly. Shortly after his
conviction and sentencing hearing, the U.S. Supreme Court decided Alleyne, overruling prior
precedent and holding that statutory sentencing enhancements –like the one applied in Clinton’s
case – should be submitted to a jury.5
On appeal, Clinton raised only one argument: his 10-year firearm sentence was unlawful under
Alleyne because the court did not submit the sentencing enhancement issue to the jury to decide.
There was no question that, in light of Alleyne, the trial court erred. It should have asked the jury
to decide if the firearm was discharged, and if so, if that event was reasonably foreseeable to
Clinton. But did Clinton preserve this error when he argued at sentencing that there was
insufficient evidence that the discharge was reasonably foreseeable? Even if broadly construed,
Clinton’s argument was untimely – he did not ask the trial judge to submit the question to the
jury at the time of trial. Thus, because Clinton never gave the trial court the opportunity to fix
the error he was raising on appeal, his claim could only be reviewed for plain error.
Even a plain error must have mattered to the outcome. So the issue for the government was
whether any reasonable jury would have or could have reached a conclusion that differed from
that of the trial court. In other words, was the plain error harmless given the evidence?
For trial attorneys, there is always a temptation to cut and paste the facts from the trial memo
into the appellate brief. Resist that temptation. The Clinton case illustrates why: the trial memo
focused on the government’s proof that Clinton never withdrew from the Hobbs Act conspiracy.
It only briefly addressed the firearm and the fact that one of the defendants fired at a pursuing
sheriff’s deputy. The trial memo did not identify specific evidence showing that Clinton knew
5
Alleyne v. United States, 133 S. Ct. 2151 (2013).

that a firearm would be used during the course of the robbery. For that, we needed to go back
into the trial record.
Here’s what was in the trial memo:
1. All four defendants met before the robbery and Clinton suggested the target – a small
grocery store near his home. Clinton told the others it would be a good target because
the store kept cash on hand to pay lottery tickets, and because it was run by a single
mother and her teen-aged daughter. One codefendant agreed to bring a gun.
2. Two of the codefendants entered the store, pulled a gun on the owner’s daughter, and
took over $10,000 in cash. A third codefendant acted as the getaway driver, and
defendant held the door open for the others, wearing a mask and a hooded sweatshirt.
3. One codefendant tripped as he exited the store, and he dropped the cash box sending
currency all over the parking lot. This generated attention from bystanders, and
several calls to 911.
4. After gathering up as much of the cash as they could, the four defendants hopped into
a van and sped from the parking lot. A marked patrol car soon took chase.
5. Defendants pulled into an elementary school parking lot, leaped from the van, and
began to run in four different directions. The codefendant with the gun fired twice at
the officer, missing him, but effectively assisting the others to escape. It took several
days before each of the four were arrested.
Here is the other information in the record that proved helpful to the government on appeal in
establishing that there was no plain error because any error was harmless:
1. During their initial meeting in which they planned the robbery, it was Clinton who
suggested that they would need a gun because he knew that the store owner kept a
handgun in her apron.
2. In the van, the four defendants discussed the police presence, and one co-defendant
commented that the only way they could get away would be to attempt to scare the
officer off by shooting at him. Clinton heard this, and said nothing in response.
This case offers an illustration of why it is so important to take a fresh look at a case when
transitioning from trial to appeal. Issues shift and different facts become more pertinent to
resolving the issues. In the Clinton case, the fact that he was the one who initially suggested that
they would need a gun because he knew that the store owner would be armed is great evidence
that he personally should have anticipated that a firearm would be discharged during the course
of the robbery. In fact, because the store owner was armed, it was very likely. And the fact that
Clinton failed to object to his codefendant’s explicit plan to use the gun to fend off the officer
also makes the firearm’s use clearly foreseeable to Clinton. Had these facts been left out simply

because they weren’t in the trial memo, this would have been a tougher case for the government.
And no good appellate lawyer should ever rely on the judges or their staff to find this material
for them; our primary job is to educate the court about the material facts in our case, and
secondarily, to inform the court of the applicable law and how that law should apply in this
instance. As any appellate judge or practitioner will tell you – facts drive cases. And while bad
facts often lead to bad decisions, the same is true of good facts. We just have to make sure that
we use them effectively.
Creating the Appellate Record

There is a reason that most TV crime dramas involve trial and not appellate scenes: appellate
work largely takes place in an office with a computer. Jack Nicholson isn’t shouting from the
witness stand. There is little action, and today, there isn’t even much paper. Trial transcripts and
exhibits are loaded onto iPads and highlighted electronically. Like painting a house, most of the
work is in the preparation; it takes time to read a 13,000 page trial record.
Practice Tip: Break large reading projects up into manageable chunks. For example,
read only 50-75 pages at a time, then take a short break. Stand up, take a walk, stretch,
etc. These micro-breaks are necessary to maintain sharpness. Trying to read too much in
a single sitting invites the possibility that you will miss something important.
What should go into the record? Many courts have local rules that provide some guidance, but in
general, the record that you supply to the court should include any information relied upon in
your brief. And if you are citing only a page or two of a witnesses’ testimony, you should
include any additional pages necessary to provide context – enough so that the court can ensure
that the statement is accurate and supports your proposition. If the issue on appeal is whether
there is sufficient evidence to sustain a conviction, many judges have said that they want to see
the entire trial record, including exhibits. Many lawyers leave out exhibits, but it is often
difficult to understand the testimony without them. My office now provides the court of appeals
with a separate disk of the trial exhibits as a matter of course whenever we handle an appeal
involving trial related issues. Bottom line: if we discuss testimony or an exhibit in our brief, that
reference must be followed by a record citation.
Finally, the excerpts should include an index sufficiently detailed to be useful. For example,
instead of simply listing transcripts by day, specify the page breaks by witness and include a
brief description of each exhibit rather than simply listing them by number.
Drafting the Appellate Brief: Rule 28

Federal Rule of Appellate Procedure 28 lists all of the required sections for an appellate brief and
specifies that each section should be delineated with “appropriate headings.”

 A corporate disclosure statement, if required by rule 26.1;
 A table of contents with page references;
 A table of authorities;
 A jurisdictional statement;
 A statement of issues;
 A statement of facts;
 A summary of the argument;
 The argument, including the applicable standard of review;
 A short conclusion; and
 A certificate of compliance.
The rule also specifies that the each required section should appear “in the order indicated,”
though some circuits (including the Ninth) allow some flexibility.
Rule 28(b) permits the appellee to omit the jurisdictional statement and the statements of issues,
the statement of facts and standard of review “unless the appellee is dissatisfied” with the
appellant’s statement. Most experienced appellate practitioners will not take advantage of this
rule – particularly with regard to the statement of the facts – for at least two reasons. First, we
want our briefs to stand alone so neither the judge nor his law clerk has to flip back and forth
between briefs to find anything necessary to decide the case. Everything the court needs to rule
should be in our brief. Second, our opponents rarely ever characterize anything in the same
manner that we would. For the fact section, we want to tell the story of our case from our
client’s perspective.
In addition to Rule 28’s specifications, many circuits have adopted local rules with additional
brief requirements. For example, in the Ninth Circuit parties must include an addendum with the
full text of any statute or regulation “meaningfully discussed” in the brief. Local rules are
available, free of charge, on each federal Circuit court’s website.
Writing the Brief: Step-by-Step
A. The Jurisdictional Statement
Start with the jurisdictional statement. It is one of the easiest sections to write, and it is a good
reminder to make sure that the appellate court actually has jurisdiction. If the appeal is untimely,
or if a party executed an appellate waiver, then go no further. You should file a motion to
dismiss the appeal rather than filing a formal brief. In civil cases, the notice of appeal filing

deadline is jurisdictional.6 In criminal cases, timeliness is not jurisdictional, but untimeliness
will be deemed waived or forfeited if it is not promptly raised.7
A jurisdictional statement must cover three points: (1) the statutory basis for the district court’s
jurisdiction; (2) the statutory basis for the court of appeals’ jurisdiction; and (3) that the appeal is
timely and filed as a result of a final judgment, or an otherwise final, appealable order. See Fed.
R. App. 28(a)(4).
For example, in most criminal cases, the basis for the district court’s jurisdiction is 18 U.S.C. §
3231, and the basis for the appellate court’s jurisdiction is either 28 U.S.C. § 1291 (appeals from
final judgments), 18 U.S.C. § 3742(a)&(b) (sentencing appeals), and 18 U.S.C. § 3731 (appeals
by the United States). An appeal from a judgment in a criminal case must be filed within 14
calendar days from entry of judgment. Fed. R. App. 4(b). From the trial court’s docket sheet,
look for the “date entered,” to determine the date to begin counting forward.
The government has 30 days to file a notice of appeal in a criminal case, parties in civil cases
also have 30 days to file a notice of appeal, and in civil cases involving the government, the time
to file a notice of appeal is 60 days. The rules provide that a prematurely filed notice will be
deemed to have been timely filed on the date of judgment. Fed. R. App. 4(a)(2). In cases
involving multiple appeals, any party has 14 days to file a notice of appeal from the date any
other party filed its notice. Fed. R. App. 4(a)(3).
A typical jurisdictional statement will look like this:
The district court had jurisdiction over this criminal case. 18 U.S.C. § 3231. The district
court entered a final judgment on May 10, 2012 (ER 3), and defendant filed a timely
notice of appeal on May 12, 2012. (ER 1). This court has jurisdiction. 28 U.S.C. §
1291.
B. The Issue Statement(s)
Before you begin to write the statement of facts or the argument, you need to have a plan.
Your issue statements should serve as an outline for the rest of your brief. And your issues
statements should align clearly with your argument headings. I typically sketch these out on
a white board located directly alongside my computer. The white board permits flexibility
and keeping the issues front and center will help keep you on track.
6
Bowles v. Russell, 551 U.S. 205 (2007).
7
United States v. Watson, 623 F.3d 542, 545 (8th Cir. 2010); United States v. Frazier, 605 F.3d 1271, 1278 (11th
Cir. 2010).

 Practice Tip: Writing the issue statement(s) first (or just after the jurisdictional
statement) also means that each time you return to or re-open your brief, those
statements appear and invite further scrutiny. Over the course of working on a brief, I
often find that I modify the issue statements (at least a little bit) each time I re-open
the file. I tend to shoot for no more than three lines per issue, and I work to prioritize
any factual information so that we only include the most salient points.
In general, a good issue statement is one that: (1) is concise and comprehensible; (2) focuses
on the decision being challenged; and (3) incorporates the applicable standard of review.
Concise & Comprehensible: The issue statements typically appear on the brief’s first page
just after the jurisdictional statement. Finding a balance between keeping it short, but
providing the court with enough context to make the issue statement helpful takes some time
and experience. Many judges have commented that they find it frustrating to pick up a brief
and to have to read the entire brief (and sometimes the record) before they feel like they
actually understand the case and the issues. These same judges have explained that they
want to know what the case is about, and what they need to decide on the brief’s first page.
That goal may be accomplished with an introduction (if the practice is permitted in your
circuit), or with the issue statements.8 At a minimum, we need to be sure to identify what the
court must decide while providing some specific factual context.
For example: Defendant’s motion to suppress was properly denied.
This definitely meets the “concise” goal, and it tells the reader that this was probably a
criminal case and that the district court denied the motion. The use of the word “properly”
conveys that the standard of review is de novo. But what exactly was suppressed? Was the
search conducted pursuant to a flawed search warrant, or did the government rely on an
exception to the warrant requirement? What was the underlying crime? And did we intend
to suggest that the entire issue should be on subject to de novo review?
One possible revision: After advising defendant of his Miranda rights, defendant admitted
that he robbed the bank. Did the district court clearly err when it found defendant’s waiver
knowing and intelligent, and did it properly deny defendant’s motion to suppress his
confession?
8
Even though Rule 28 does not specify that a brief should contain an introduction, it does not prohibit it either. The
Ninth Circuit generally permits them, and some of those judges have said that they find them helpful. I typically use
an introduction only in large, complex cases, or if I cannot accomplish the goal of letting the court know on the first
page what the case is about through the issue statements. Usually this happens when the issue statements I attempt
to draft are too long. An introductions should only be used if it would be helpful to the reader and only if it can be
accomplished quickly; for a large, complex case, a one-page introduction may help guide the reader through the
various sections of the brief and provide context and meaning for what the judge is about to read.

In just two sentences and 39 words, this revised issue statement alerts the court to the fact
that this was not only a criminal case, it involved a bank robbery, and the evidence defendant
thought should be suppressed was his own confession. The revision identifies two different
standards of review that apply to this situation: the more deferential clear error standard for
the Miranda waiver issue and the de novo standard for the trial court’s ultimate conclusion
that the waiver was voluntary.9 The revised issue is comprised of two sentences; there is no
rule or requirement that an issue statement fit into a single sentence. And if you find yourself
adding more than two or three commas, consider using separate sentences instead because
they are easier for readers to digest.
Another possible revision:
During the execution of a search warrant at defendant’s home, investigators presented

defendant with a written Miranda waiver form. After reading and signing that waiver
form, defendant agreed to talk to the officers and he confessed to a bank robbery. The
agents never drew their guns, made no threats, and the entire encounter was low-key.
Given the totality of the circumstances, did the district court clearly err in finding
defendant’s Miranda waiver knowing and intelligent, and did the court properly deny
defendant’s motion to suppress?
This revision probably fails the “concise” test at 85 words. It certainly helps to frame the
issue, and it provides a number of helpful, specific details to highlight why the district court
made the right decision. But while the manner in which issue statements are framed may be
subtly persuasive, issue statements are not supposed to be argumentative (at least not quite so
blatantly). This issue statement was clearly drafted by a prosecutor, and it includes a good
deal of information that will appear later on in the brief. The one additional fact that an
appellee might consider keeping is that defendant signed a form before confessing. This is
such a key fact that it might bear mention in the issue statement. That the form was
presented to defendant in his home during the execution of a search warrant does not appear
to be particularly relevant or helpful to the prosecution. But overall, while this is a possible
alternative formulation, it is not the best one.
 Practice tip: When deciding when and whether to include case-specific facts in an
issue statement, don’t bury the lead! For example, I once worked on a case in which
a defendant challenged a trial court’s denial of his motion to suppress evidence on the
basis that the police lacked a warrant when they searched his home. He neglected to
mention that the police were called to his home because there was a dead person lying
on his front porch. The first draft of our response brief mentioned this detail, but not
9
United States v. Amano, 229 F.3d 801, 803 (9th Cir. 2000).
until page 14! A dead body is a big deal. That one fact speaks volumes about why
the police were there, and why they needed to search for evidence surrounding the
death. It’s a fact that, in the final version of the brief, appeared in the issue statement.
Some issue statements become weighed down by too many details, particularly unnecessary
details. For example:
 Whether the ALJ properly rejected the opinion of physician assistant Erica Wilson,
P.A.-C, when it was of little or no evidentiary value in assessing Mr. R’s residual
functional capacity.
 Revision: Whether the ALJ properly rejected a physician assistant’s opinion because
it was conclusory and uncorroborated by any medical findings.
 Notes: The first version includes the assistant’s name, which is irrelevant to the
appeal. It also uses an acronym that may, or may not, be familiar to the reader. The
issue itself is ill-defined because it offers a conclusory assessment of the testimony’s
value, without explaining why it lacked evidentiary value. The reader is expected to
simply trust the author, and at this point in the brief, the author has yet to establish
that kind of credibility.
o The second version is better because it omits unnecessary details and
acronyms and because it explains why the ALJ’s treatment was proper.
A few things to note about issue statements:
 The answer to the issue statement should generally be “yes.” We want the court to
focus on why we should win and only secondarily on why our opponent should lose.
 None of these alternative issue statements include citations to statutes, regulations or

cases. Unless there is a statute, regulation, or binding, precedential case precisely on
point, citations should be reserved for the argument section of the brief.
 The word “appellant” and “appellee” do not appear. Rule 28(d) discourages the use
of these terms, and encourages parties to either use their actual names (e.g. Jones) or
the designation used in the lower court (e.g. plaintiff, defendant, claimant).
 The text is in standard, upper and lower case, rather than all caps. Capitalizing entire
sentences looks, on the page, like screaming, and it is far more difficult to read.
Underlining also slows down the reading process.
Focus on the Decision Being Challenged & Incorporate the Standard of Review: Trial
lawyers need to resist the temptation to re-argue the motion or case as if they were back before

the trial court. Appellants might want to invite such scrutiny, but for the most part, appellate
judges are not looking to retry a case. What the appellate court needs to know from the parties is
this: What went wrong in the trial court, and what do you want us to do to fix it?
Is this an appeal from a grant of summary judgment? If so, the appellant should pinpoint how
the district court erred. For example, did the court grant the motion by improperly weighing the
evidence? Or did the court fail to consider evidence that created a genuine issue of material fact?
The appellant should also clearly identify what she hopes to achieve with the appeal – i.e. should
summary judgment have been granted in her favor, or should the case be decided by a jury?
 For example: Should the district court have denied defendant’s motion for summary
judgment and permitted this case to go to trial because there was a genuine factual
dispute about whether Ms. Candido was subjected to a hostile work environment?
For the appellee, you’ll need to decide if you think the case should be affirmed for the reasons
identified by the district court, and/or for other, independent reasons. One oft-used appellate
maxim is that the trial court may be affirmed on any basis supported by the record, regardless of
whether or not the trial court identified a legally appropriate rationale.
The appellee must answer the issues raised by the appellant and highlight why those challenges
should be rejected. So long as each issue raised on appeal is squarely addressed, the issues
appellant identified need not be addressed in precisely the same manner or in the same order.
Sometimes the appellant will break what might be considered a single issue into several
differently phrased issues, either to create the appearance of multiple errors and/or to build a case
for reversal based upon cumulative error.
Example:
Appellant’s Issue Statements:
1. Did the district court err in denying defendant’s motion to substitute counsel?
2. Did the district court err in failing to provide defendant with counsel during a critical
stage of the proceeding?
3. Did the district court err in failing to appoint new counsel to argue defendant’s motion to
substitute counsel?
Appellee’s Issue Statement responding to appellant’s three issues:
1. On the eve of trial, and after his attorney had expended over 2,000 hours on his case,
defendant asked the court to appoint a new attorney claiming a break-down in

communication. Did the district court abuse its discretion when, after conducting an in
camera hearing, it denied defendant’s motion?
a. Note: As phrased, the answer to this question should be “no.” When the abuse of
discretion standard applies, it is often difficult to phrase the issue in such a way
that it suggests a “yes” answer. This could be re-phrased to ask if the district
court “properly” or “appropriately” denied the motion, suggesting a “yes” answer.
But then the appellee loses the opportunity to highlight its favorable standard of
review. In this situation, I’d opt for leaving in the abuse of discretion standard
and living with the “no.”
In sum, an issue statement should be a factually accurate and concise statement of what the
appellate court must decide. Incorporating the standard of review into your issue statement
notifies the court about the manner in which it should be approaching the case. It tells the court
what kind of lens to view the case through: sharp focus (de novo), soft-focus (clear error), or
super-soft focus (abuse of discretion).
The Inverse: Argument Headings: In addition to serving as an introduction to your case and
identifying the court’s task, your issue statements will serve as the basis for your argument
headings. Indeed, your argument headings should closely resemble your issue statements, and
should appear in the same order. While arguments may be broken down further into sub-issues,
the basic principle remains: arguments should track the issues.
Converting issue statements into argument headings is easy. Here are two examples:
1. Issue Statement: Whether the district court clearly erred in finding that defendant’s
consent to search his house was voluntary.
a. Argument Heading: The record supports the district court’s finding that
defendant voluntarily consented to the search of his home.
i. You might follow this up with a few subheadings that list the reasons
why the court reached the correct result. For example:
1. The encounter was “low-key” and the officers made no threats
or promises.
2. The officers told defendant he could refuse to consent.
3. Defendant was not in custody or impaired in any way.
2. Issue Statement: A jury returned a verdict finding for the defense and rejecting
plaintiff’s claims that he was demoted because of his race or age. Did the district
court abuse its discretion when it denied plaintiff’s motion for a new trial?
a. Argument Heading: The district court did not abuse its discretion by denying
plaintiff’s motion for a new trial.

i. Ample evidence supported the jury’s verdict: plaintiff was demoted
because customers complained.
ii. The jury properly resolved conflicts; it was entitled to believe the
supervisor’s good faith explanation for plaintiff’s demotion.
C. Statement of the Facts
Many judges identify this section as the most important part of an appellate brief. That’s
because facts drive decisions, and judges often have a handle on the law already. This is the
one topic that you, as the appellate lawyer, can rest assured that you know far more about
than the judges. And this section is your opportunity to tell the court the story of your case
from your client’s perspective. A good, compelling fact section is challenging to write, but
there are several rules, strategies, devices, and style pointers to make the process easier.
(1) Bright-Line Rules
The fact section may not contain “argument.”10 That means that in this section, you should
accurately describe what the witnesses saw or heard or said, but no more. This is not the
place to draw conclusions or inferences from the evidence.11 If the witness testified that she
saw defendant running from the bank shortly after the alarm triggered – say that. Do not say:
“Defendant demonstrated his guilt by running from the bank, shortly after the alarm triggered
(citing the witnesses’ testimony). And if the witness said that the defendant “walked away,”
don’t substitute in the word “dash.” Particularly with descriptive terms, it is best to stick to
the words that the witnesses used for your fact section.
This bright-line rule means that adjectives should be used with caution: stick to the words
actually used by the witnesses, because variances may be construed as (at best)
argumentative, and (at worst) deceptive. Adverbs are almost invariably argumentative:
utterly, wholeheartedly, frivolously, and any other word ending in –ly is suspect.
10
The Seventh Circuit adopted a local rule that expressly prohibits argument in the fact section. 7 th Cir. R. 28(c).
The court has sanctioned attorneys who fail to comply. See e.g., United States v. Partridge, 507 F.3d 1092, 1096-97
(7th Cir. 2007) (issuing a show cause order why he should not be fined $10,000– naming the attorney several times –
for failure to abide by the rules governing fact sections, and other violations).
11
The Ninth Circuit was particularly critical of an attorney who described, in his fact section, a declaration
describing his client’s encounter with police as one in which the officers told the plaintiff they were arresting him in
retaliation for his refusal to cooperate. The court checked the record and discovered that the declaration simply
stated that the officers arrested plaintiff for Grand Theft, and it made no mention of any retaliatory motive. Hart v.
Parks, 450 F.3d 1059, 1068 (9th Cir. 2006). In describing this, and other inaccurate factual references, the court
called it “disingenuous,” and observed: “Even the most innocuous quotation, when disfigured through the liberal
use of brackets, can appear invidious; that does not mean, however, that a genuine issue of material fact is presented.
We remind counsel (again), that the “fact” section of a brief is for facts; it is not an opportunity to engage in
imaginative additions with wanton disregard for the record.” Id. Consider this the modern-day, judicial version of
the head on a spike outside the castle wall.

Another bright-line rule is that any fact we intend to rely upon and discuss in the argument
section must appear somewhere in the fact section. A fact should not be introduced for the
first time in argument. That does not mean, however, that the facts should be copied and re-
pasted into the argument section (more on that in the next chapter). This does mean that we
should be organizing our facts with an eye towards setting up the issues we are about to
address in the argument. Thus, for example, if a criminal appeal involves a challenge to the
defendant’s sentence, your description of the crime will be far more abbreviated than it
would be had the appellant challenged the sufficiency of the evidence to sustain a conviction.
This rule does not, however, work in the inverse. There are some background facts that we
will want to provide the court in the fact section that may not be directly relevant to the
appeal, but which are necessary to gain a full understanding of the case. For example, in a
sentencing appeal in which the defendant challenged a two-level enhancement for use of a
computer, the government’s factual section included details about the underlying offense:
sex trafficking of a minor. The point wasn’t to sully the defendant (although it may have had
that effect), but instead to provide the court with some context for why the computer
enhancement was appropriate. The evidence at sentencing established that prostitution
marketing today largely takes place on the internet and on sites like backpage.com; it is no
longer a strictly street level effort. Moreover, the defendant in that case received a 40 year
sentence, and even though his attorney did not challenge the length of the sentence, most
judges will want to know why the case involved such a significant penalty. Thus, the
government’s brief included a few paragraphs about the defendant’s repeated and brutal
attacks on his teen-aged employees. While we should not belabor collateral points, we also
should not shy away from telling the full story of our case.
So should the appellant skip the details of his offense altogether, and simply focus on the
facts surrounding the computer enhancement? I would suggest not: while the facts were not
favorable to this defendant, material omissions in a party’s fact section destroy an advocate’s
credibility. If the court doesn’t learn any of the pertinent details about this crime until
reading the appellee’s brief, the appellant’s attorney has lost – even if his client ultimately
prevails. That does not mean, however, that the appellant needs to go into every detail or tell
the story in the same way that the government told it; but it does mean that the defendant
should give an accurate, if abbreviated, portrayal of the criminal activity leading to his
conviction. A good appellate advocate embraces the weaknesses in her case, addresses them,
and – in the argument section – explains why those weaknesses don’t matter.
One final, bright line rule for the fact section: each factual assertion must be followed by a
citation to the record. The rules require it. Fed. R. App. 28(a)(7). And the rule exists for a
very good reason: the court uses record citations to verify what we say, and to know where

to look if it wants to view the assertion in context. And because courts actually use these
citations, they must be specific and reliable.
 A bad example: Mack and Dalrymple returned to the gun store that night. Armed
with a handgun stolen from Ammo Mart, they cut the telephone lines and forced the
door open with a crow bar. Once inside, they smashed open a glass display case and
emptied its contents. They left the scene with six semi-automatic rifles, four
handguns, and fifty boxes of ammunition. (ER 22, 25, 35-47, 60, 78-93).
o Placing all of the record cites at the end of the paragraph is only marginally
helpful because the reader cannot tell which citation relates to any specific
fact.
 A much better example: Mack and Dalrymple returned to the gun store that night.
(ER 22). Armed with a handgun stolen from Ammo Mart (ER 25), they cut the phone
lines and forced the door open with a crow bar. (ER 35-36). Once inside, they
smashed open a display case and emptied its contents. (ER 39-40). They left the
scene with six semi-automatic rifles (ER 78), four handguns (ER 82), and fifty boxes
of ammunition (ER 86).
 Note that each citation is to the Excerpts of the Appellate Record, also known as a
“Joint Appendix” in some jurisdictions. This means that any document, exhibit, or
transcript that we rely upon from the district court must be included in our ER or JA.
To sum up, there are three non-negotiable rules applicable to the Statement of the Facts: (1) all
assertions must be accurate and not argumentative; (2) if a fact appears in the argument section,
it must appear in the fact section; and (3) every factual assertion must be followed by a specific
citation to the appellate record.
(2) Structure & Strategy
In his interview with author and lecturer Brian Garner, Chief Justice John Roberts describes what
it feels like to read poorly written briefs: it’s like trying to hack through a jungle with a
machete.12 Many fact sections are a jungle because they are poorly organized, include
unnecessary details, and/or they omit important facts. This leads to confusion, frustration, and it
could yield a loss simply because the court could not discern your point.
To start the organizational process, divide the fact section into at least two parts: (1) the merits
fact; and (2) the procedural facts. The “merits facts” tell the story of the events leading up to the
case’s initiation in federal court. The “procedural facts” section tends to begin with a civil
complaint or a criminal indictment, and ends with the entry of a final, appealable judgment.
Comments from federal judges have prompted this approach, and these judges have generally
12
See www.lawprose.org

explained that the procedural facts make little sense unless and until they know about the events
leading up to the case’s filing. And procedural facts are generally not as interesting as the merits
facts, so you want to lead with your more interesting points.
Most judges will tell you that a good fact section is one that tells an interesting story. In his
article, “Five Ways to Write Like John Roberts,” author Ross Guberman gives the example of
the brief then lawyer Roberts filed involving the “Red Dog Mine.”13 Roberts’ fact section began
with a short, interesting, historical explanation about how the mine got its name. While this
information was unnecessary to the issues (pollution and federalism), it was interesting, and it
drew the reader into the rest of the facts that were directly pertinent to the appeal. So how do
you write an interesting story?
There are several other good ways to begin a fact section. One is what I call the “dark and
stormy night” introduction. This method sets the scene for events that are about to unfold. Like
most fact sections, it unfolds in chronological order. Here is an example from a case in which a
defendant was convicted of attempted on-line enticement of a minor:
 In the Fall of 2010, defendant approached “JS,” then a 16-year old high school
student, while she was participating in a fund-raising event at a school football game.
(ER 13). Defendant knew her by name; she was his daughter’s classmate at school,
and the two girls played on the same volleyball team. (ER 14-15). Defendant told JS
he had seen her at a Target store, and thought she looked “very nice.” (ER 17).
Defendant’s comments made JS feel “uncomfortable.” (ER 32).
 A few things to note about this opening paragraph:
o The date is included to give the reader a general sense for the timeframe, but it
is not so specific as to suggest that the date matters in this particular case.
o Because this is a criminal case, initials are used to denote crime victims who
are minors.
o The fact that Defendant knew the victim through his own daughter is not
directly relevant to the issue on appeal (the validity of his sentence), but it is
an important element to the story because it explains how he met JS.
o Defendant’s comment to JS, and JS’s description of how this comment made
her feel, are quoted rather than paraphrased in this section to be as accurate as
possible. In the argument section, we can draw the inference that defendant
was flattering her as part of a long-term strategy to convince her to have sex
with him. But we save such inferences for argument.
o Every factual assertion is supported by a specific record citation.
13
www.legalwritingpro.com/briefs/alaska-epa.pdf

o The story we’ve started is interesting – the reader wants to continue reading to
find out what happens to JS.14
Not every case is a Nabokov novel. There are some cases in which finding a “hook” is a
challenge. But just about every case has some interesting aspect to it that can be used to draw a
reader in (if only slightly). For example, in a government loan dispute, the facts were neither
very interesting nor favorable to the government. Congress had passed legislation that made
retroactive amendments to existing low income housing loan agreements that imposed less
favorable terms than the parties had agreed to at the time of the initial loan. In that case, we
looked to the legislative history for help because that history revealed that Congress was really
addressing an unanticipated loophole in earlier passed legislation. Many large property
management interests were taking advantage of low interest rates through the low-income
housing program, then pre-paying off their loans years, and sometimes decades earlier than
anticipated. Once the loans were paid off, the owners converted the property to high-income
housing, then evicted the low-income tenants. So while the statutory change arguably worked to
the owners’ detriment, the goal was laudable: congress wanted to preserve the long-term
availability of low income housing. To highlight this favorable fact, and to introduce the story of
our case in a light favorable to the government, we began the fact section this way:
 A. Encouraging Long-Term Development of Low-Income Housing Options.

o Congress enacted the National Housing act of 1949 to encourage private
investment in housing for elderly and low-income individuals in rural areas.
See 42 U.S.C. 1441-1490. The National Housing Act authorized the Rural
Housing Service to make direct loans to finance affordable housing. 42
U.S.C. 1485. In exchange for favorable interest rates and operating subsidies,
the housing owners agreed to rent to low-income tenants at an affordable rate
for as long as the loans remained outstanding. 42 U.S.C. 1490a.
o Loans made under this program initially provided borrowers with an
unrestricted right of prepayment. Franconia Assoc. v. United States, 536 U.S.
129, 135 (2002). By 1979, Congress was concerned about the number of
borrowers repaying RHS loans. The numbers were so high that the continued
viability of affordable rural housing was threatened. Id. at 135-36.
Ultimately, Congress passed the Preservation Act to discourage RHS program
borrowers from paying off their loans early by creating “elaborate” procedural
requirements for prepayments. DBSI/TRI IV Ltd. Partnership v. United
States, 465 F.3d 1031, 1035 (9th Cir. 2006).
14
In fact, Defendant began to pursue JS through her Facebook page, and fortunately, JS told her parents who then
called the police. Defendant was convicted and sentenced to 10 years.

The brief continued with a few more paragraphs explaining the legislative history, then started a
new subsection that described the Plaintiff’s loan and loan history. Without the legislative
backdrop, the disputed issues in the case made little sense. The legislative history gave the
reader a context for understanding what happened between the parties and why their
disagreement arose in the first place. It also highlighted the case’s broader implications: if the
court were to invalidate the legislation, it would affect the availability of low- income housing
options in rural areas.
Sometimes an appeal can seem daunting – either because of the volume of the opening brief, the
number of issues identified, or the apparent complexity of the issues presented in the case. In
these circumstances, it is often helpful to begin a fact section by highlighting what is not in
dispute, then presenting the court with the narrowest focus of the issues. The goal is to give the
court some comfort that the parties actually agree on a few things, so the court’s task is
manageable. This is the “it’s not so bad” approach. For example, in some cases there are few, if
any, disputed facts and the only issue for the appellate court is one of law and a question about
whether the trial court properly applied governing legal standards to a particular set of
circumstances. Here is an example opening paragraph from just such a case:
 Most of the facts in this case are undisputed. Defendant supplied heroin to Tony
Simpson the night before Tony died. (ER 22, 117). Tony died as a result of a heroin
overdose. (ER 20, 156). The only disputed issue before the district court (and now
this Court), is whether the government presented sufficient evidence that defendant
supplied the fatal heroin to Tony, or whether a reasonable doubt was created because
Tony could have obtained the fatal dose of heroin from some other source.
The next paragraph in this brief begins to tell the story about how Tony contacted the defendant
and offered to work for him to earn heroin because he was sick from withdrawal, how defendant
gave Tony just enough heroin to recover, and then he used Tony to return stolen merchandise to
stores to obtain gift cards. The story then unfolds in the remainder of this section in
chronological order.
 When facts are undisputed, there is generally no need to attribute those facts to a
particular speaker. In the example above, the reader will eventually learn that the
victim’s sister was with him when the victim injected heroin supplied by the
defendant, and she is the one who testified about these events at trial. Had the
defendant contested this assertion, however, it would be necessary to attribute the fact
to the sister, and at some point, make clear that defendant contested the fact.
o For example: Tony Simpson died as the result of a heroin overdose. (ER 20).
At trial, Tony’s sister Elena testified that she was with Tony when defendant
gave her brother two small packages of heroin; she saw Tony open one of

those packages and inject the drug into his arm. (ER 156-57). Defendant
denied that he gave Tony any heroin that night. (ER 182). Defendant
admitted that he had sold marijuana to Tony on a number of occasions, but he
claimed that he never bought or sold heroin to anyone. (ER 183).
o Elena was not, however, the only witness who saw defendant bartering with
heroin. Tony’s neighbor, Jonathan Prince, testified that he too had returned
stolen merchandise for defendant in exchange for heroin. (ER 133).
 What if there is a factual dispute, but you have six witnesses who testified
consistently with one another, and one witness who disagreed? In this situation, it is
best to summarize and collectively describe the six witnesses’ testimony to avoid a
repetitive rendition of events. To the extent the six differ in any meaningful way,
those differences should be noted.15 This situation arises quite often in cases
involving search and seizure issues. For example:
o During the execution of a search warrant, defendant was asked to accompany
the detective to the police station for an interview. (ER 20, 56, 89).
 [Three witnesses testified to this fact, including the defendant, so all
three transcripts cites are noted.]
o Defendant agreed, and after executing a written Miranda warning, he spoke
with the detective for about an hour. (ER 22, 58, 99).
o The detective and a uniformed police officer testified that defendant was
never handcuffed, and was told that he was free to leave at any point during
the interview. (ER 23, 59). Defendant claimed that he was placed in
handcuffs and denied that anyone ever told him that he could leave. (ER 112).
Over the course of the hour, defendant said that he had been downloading
child pornography for years, but he assumed it was “legal” because he was
able to purchase the material using a credit card. (ER 27, 60, 114).
 Note how specific attributions only appear when the facts are disputed,
and they disappear (but are followed by multiple ER citations) when
the facts are agreed. Later in the section, when we turn to the case’s
procedural history, we’ll note that the district court resolved the factual
dispute by finding the detective and police officer more credible. We
will not, however, repeat all of the factual details in the procedural
section. Instead, we’ll simply let the appellate court know that there
was an evidentiary hearing -- because that is procedurally significant –
and the outcome of that hearing, including any of the district court’s
fact or credibility findings. Recall that such findings are subject to a
deferential standard of review.
15
If there is a difference in accounts, and if the difference is not material to the issues, it still may be appropriate to
include a brief description of the difference in a footnote. Slight variations in honest accounts are to be expected..

Another popular and effective way to begin a fact section is the panoramic overview. A former
U.S. Attorney for the District of Oregon was a particularly great fact writer, and he handled an
appeal from a sentence for a defendant convicted of seaman’s manslaughter. Although the
defendant in that case entered a guilty plea, the issue on appeal was whether the sentence was
unreasonably too high, so the facts of the underlying crime mattered. The opening paragraph of
this brief’s fact section tells the reader what happened, and sets the stage for what’s to come in
such a way that you want to keep reading:
 A. Oba Fails to Heed Coast Guard Warnings and the Syndey Mae Sinks.
o Defendant Richard Oba was the captain of a 38-foot charter fishing boat
known as the Sydney Mae. (ER 5). On September 19, 2005, Oba took four
passengers on a fishing charter from his home port of Winchester Bay. (ER 5-
6). While the Sydney Mae was at sea, the waters at the entrance to the port –
the Umpqua River Bar – became treacherous, and the United States Coast
Guard closed the bar. (ER 8, 76). Oba was warned of the bar closure at least
nine separate times, and was specifically told by the Coast Guard not to return
to Winchester Bay. (ER 12, 20-24, 35-37). Oba disregarded these warnings
and entered the dangerous waters of the Umpqua River bar at nighttime. (ER
37, 42). The boat was struck by a large wave and sunk. (ER 13). Three of
the Sydney Mae’s passengers died (ER 15, 18, 20); Oba and one passenger
were saved by the crew of a United States Coast Guard rescue boat. (ER 50).
 The paragraphs that followed this opener essentially filled in all of the gaps, and
detailed each of the nine warnings Oba received and ignored that night. While most
editors (myself included) generally counsel against the use of passive voice (e.g. Oba
was warned . . .), the passive voice in this case serves an important purpose: it keeps
the attention on Oba, and his pig-headed refusal to follow instructions. The identity
of the Coast Guard personnel issuing these warnings is irrelevant, so it is excluded to
avoid any unnecessary distraction from the central theme.
 You might also observe that there are some details included in this paragraph that are
not directly relevant to Oba’s state of mind or the sentence. Why include the size of
the boat or the fact that it was sunk at night? While not directly relevant, the boat’s
size helps the reader visualize. That the boat sunk at night will become relevant as
the reader discovers more details about the passengers who died, and the lone
passenger who survived this ordeal. The water was extremely cold, the sky was very
dark, visibility was poor – all facts that make this scene foreboding. And ultimately,
the district court focused on the trauma inflicted on the victims as one of the main
justifications for imposing a sentence far lengthier than Oba thought appropriate.
 What you will not see in a really well-written fact statement is a witness-by-witness
summary of the testimony. This approach tends to be both boring and redundant.

Both prior two examples used subheadings. Subheadings help organize your fact section, and
they serve as an opportunity to highlight some of your best and most compelling facts. These
subheadings will also appear in your table of contents, which is another section of the brief that
many judges turn to for a quick reminder of what the case is about. For these reasons, you want
to use subheadings effectively and choose your words carefully. The Oba brief could have
begun with a subsection that read: “Oba is convicted of violating 18 U.S.C. ___.” But that
would not have been nearly as interesting.
Subheadings signal topic changes to the reader. They may differentiate temporally distinct facts,
they may be used to show different perspectives, and they help to organize your material. For
example, in Oba, the author used subheadings to separate the surviving passenger’s description
of the ship’s sinking, from the views of the coast guard officers who watched the boat sink as
they attempted to rescue the passengers. The second subheading read: “The Coast Guard
Rescues Oba and Parker – the Other Passengers Perish.” Dividing it up this way permits the
author to demonstrate that the crime had an effect on the rescuers as well; the coast guard
officers risked their lives by sailing into a storm to rescue the defendant and one surviving
passenger. The author never says “this was devastating.” Instead, he shows the reader that it
was a traumatic event by telling the story from more than one perspective.
In most cases, subheadings in the fact section help mark different time periods. They also serve
as a visual break from page, after page, of text. To be effective, they should be short – usually
no more than two lines – and should appear in bold print, without capitalization or underlining.
Here are some examples from a case involving the interstate transportation of a minor for the
purpose of having sex:
 During a long-haul truck trip across the country and back, Defendant subjected
8-year old TF to sexual “torture.”
 TF waited until Defendant left to tell her mother about his abuse.
 TF was interviewed and examined at a CARES pediatric facility: the doctor
found signs of sexual abuse.
 The district court held pretrial hearing to determine the admissibility of
evidence and TF’s competence to testify.
(3) Other Organizational Devices & Graphics
In addition to sub-headings, another useful device – particularly in more complicated cases – is a

visual timeline. There is no rule that requires that appellate briefs contain only text, and many
judges have specifically encouraged attorneys to use pictures, diagrams, maps, and other visual
aids in briefs. We have used photographs, bar charts, and time lines in our briefs, and it often

saves several pages of descriptive text. For example, here is a photo array used in an appeal
involving a claim that a line-up was unduly suggestive:
Inserting this photo into the brief essentially took the place of a lengthy description of the exhibit
or of the testimony about the exhibit. By simply showing the photo to the court, we make it far
easier for the judges to get to the issue.
Examples of other graphics used in appellate briefs may be found here:

https://dojnet.doj.gov/usao/eousa/ole/usabook/apgr/index.htm

Inserting graphics into briefs is easy using the “snipping” tool:
The only limitation on the use of demonstrative charts or photos, is that they must have been
introduced and admitted as exhibits at trial. You should also include a copy of the original
exhibit in your appellate record. This does not mean, however, that you cannot create a
summary chart within your brief based upon other admitted evidence or the docket sheet. Here
is an example from an appeal involving a claim that a defendant’s rights under the Speedy Trial
Act were violated. To establish that this didn’t happen, the following summary list was included
in the brief:
The Speedy Trial Clock Applied:

● The indictment starts the clock on November 15, 2007 0
● Defendant files his first motion to continue the time to
File motions on December 10, 2007 +24
● The court grants defendant’s motion on 12/12/07
● Defendant files another motion to continue the time to
file motions on December 26, 2007 +13
● Trial commences April 1, 2008 +14

Be creative. The goal is to make it as easy and painless as possible to educate the court about
your case. If you can accomplish that goal with a chart or bullet points, do so.
(4) Style Pointers
 Use active voice whenever possible. It is easier to read and it tends to be more
precise. For example:
o The drugs were thrown out the window. [Use this passive voice only if no
one knows who threw the drugs out of the window.]
o Franklin threw the drugs out the window. [If you know the identity of the
thrower, identify that person because it is more descriptive.]
 Keep sentences and paragraphs short. If you find yourself inserting more than two
commas, it is probably time to break your thoughts into multiple sentences.
 Use topic sentences. The first sentence of each paragraph should summarize or
provide an overview of the other information within that paragraph. A good check
for this is that the reader should be able to skim through the brief reading only the
first sentence of each paragraph and still have a clear understanding of the case.
 Use transition sentences. The final sentence of each paragraph should foreshadow
what is about to follow in the next paragraph. [More on this in the next chapter.]
 Translate for your audience, and avoid “copspeak” or industry-speak. Many
businesses and agencies use specialized terms and acronyms that are completely
unfamiliar to the rest of us. Instead of adopting those terms or acronyms and hoping
that the court will learn them, it is better to translate them into plain English that is
generally comprehensible to an intelligent, but unfamiliar audience.
o For example, an officer might testify: “We surveilled defendant’s residence
and observed him enter his vehicle.” Don’t write like that!
o In our brief, this would be translated as: The officers watched defendant leave
his home and get into his car.
 Avoid weighing down your fact section with irrelevancies, particularly specific dates.
Unless particular dates are important to your appeal (e.g. a Speedy Trial Act
violation, or a statute of limitations dispute), the details create an unnecessary
distraction. Wherever possible, use non-specific relational dates to convey timing
and the passage of time. For example: “in the summer of 2008,” “two days later,”
“immediately after receiving notice,” etc.
D. Summary of the Argument

This section appears after the statement of the facts and just before the argument. It is, however,
the last part of the brief that you should write. You need to have identified the key facts that you
want to highlight, and you need to know where your argument is headed before you can

summarize it. And while you may think you know what your argument will be, until it is fully
thought through and articulated, any attempt to summarize it will be premature.
The summary of the argument is a pivotal section because this is where the brief shifts from a
factual recitation to a preview of the section that will lay out the legal analysis the court needs to
decide the appellate issues. Your argument summary should be persuasive; it should neither be a
compilation of your argument headings strung together, nor should it be a bland "just affirm."
Your argument summary should also be short -- it is a "summary" after all, and details will
appear in the next section. Ideally, it should be no more than a page, or for complex cases, no
more than one page per issue. Many judges turn to the summary for a quick refresher about the
case, so it needs to be short and descriptive enough to be useful.
There are several different ways to approach drafting the summary, two of my favorites:
 Imagine that your dad has stopped by and asked what you are working on; he is a
smart man, but not a lawyer. How would you describe your case to him -- knowing
that he is interested in your work, but only to a certain point? If you become too
detailed, his eyes will glaze over and he will nod absently.
 For former judicial clerks, consider how you might describe the case in a short,
unpublished memorandum disposition. What key facts and legal concepts would you
highlight to explain to the litigants why the court reached the conclusion that it did.
These are the same points you will want to make in a summary of the argument.
Here are some examples. The first case involved an appeal from the denial of a defendant’s
motion to suppress evidence found in a computer and incriminating statements defendant made
after executing a Miranda waiver. The summary is comprised of two paragraphs – one per issue
– and it is an example of how to lead with your strongest details:
When defendant used his own credit cards to purchase memberships in illegal
websites advertising child pornography, he left a trail of financial records. The search
warrant affidavit detailed these transactions, demonstrating that there was a fair
probability that child pornography would be found in defendant’s computer.
Suppression was unwarranted both because the affidavit established probable cause,
and alternatively, because the agent relied in good faith on the magistrate judge’s
conclusion that there was probable cause to sustain the search.
Defendant was questioned on the day the search warrant was executed, and he
voluntarily made incriminating statements after executing a written Miranda waiver
form. Because he was not arrested, and because he voluntarily accompanied the case
agent to a nearby police station, he was never in custody. In any event, the district
court correctly rejected defendant’s claims that he was coerced or misled into giving a

confession. Moreover, while defendant asked the agent if he should have an
attorney, he never unequivocally requested counsel and, as a consequence, the agent
did not have to terminate the interview. The district court correctly denied
defendant’s motions to suppress, and the judgment should be affirmed.
Note that the summary omits any specific case citations (aside from Miranda). Unless your
appeal hinges on the meaning of one particular statute, rule, or case, it is generally best to leave
the citations for the full argument because those details will weigh this section down.
Next, is an example from a defensive brief in an employment discrimination case. The plaintiff
raised a number of different evidentiary issues on appeal, and this summary avoids getting
bogged down in the factual details and instead focuses on the very favorable standard of review:
The district court conducted a thorough and detailed Rule 403 analysis when it
considered the parties’ motions in limine. The court allowed plaintiff to introduce
testimony from other African-Americans working at the call center to support her
theory of race discrimination, while limiting such evidence to prevent a series of
collateral mini-trials on untimely, unrelated, disputed personnel matters. This
limitation was particularly appropriate given plaintiff’s inadequate evidentiary proffer
and because none of the witnesses ever complained of racial discrimination. The trial
court did not abuse its discretion.
Your summary’s focus will necessarily vary depending upon the circumstances in your case.
Before writing this section, assess and decide what your strongest points are. For example, do
you have particularly compelling and persuasive facts (i.e. a terrible crime, or a case with
significant damages)? Or is the law heavily in your favor – for example, on an appeal from a
summary judgment ruling in a civil case, the appealing party need only identify a single, genuine
issue of material fact to establish her right to a jury trial. The following are two examples that
demonstrate these points; the first is from a case in which the appellee had strong facts, but
relatively weak case authority, the second is one in which the facts were unremarkable, but the
law strongly favored the appellee:
 Example – Strong Facts:

o The district court properly determined – based in part on the jury’s fact-
findings – that the crime ended in Oregon, and alternatively that venue was
justified because the offense involved transportation in interstate commerce
that began and ended in Oregon. Any other conclusion simply makes no
sense. Defendant transported himself and his victim in interstate commerce,

and he sexually abused TF in several different states while doing so. Venue in
Oregon was proper and sufficient evidence supported the jury’s verdict.
 Example – Strong Law:

o Neither the district court nor the victim considered defendant’s 10-year
sentence absurd, and this Court should not either. Congress decided that
people, like this defendant, who use the internet to secretly entice children into
having sex with them deserve significant punishment; that Congress chose to
sweep broadly, and encompass “any sexual activity for which any person can
be charged with a criminal offense,” should be respected.
o While ten years may well be harsh, it is not unconstitutional under the Eighth
Amendment, either categorically or as applied to this defendant. Every court
in the country confronted with similar challenges has rejected them. The ten-
year sentence was the minimum lawful sentence the district court could have
imposed. The judgment should be affirmed.
Good argument summaries also lead with why your client should win, and then follow with why
the other side is wrong. [The argument section should be structured in the same way.] Starting
on a positive note is more persuasive. For example, leading off with: “The district court did not
abuse its discretion . . .” sounds defensive; instead, try: “The district court admitted the evidence
because it was directly relevant to the plaintiff’s prima facie case, and thus, the court’s decision
was well within its broad discretion.” If possible, you don’t want the court to have to hold its
nose to rule in your favor – you want to give the court a reason to want your client to win. This
targets the pathos (compassion) or ethos (ethics) of an argument, and it is just as important as the
logos (logical reasoning) when it comes to convincing judges to rule in your favor. Judges are
not just decision-makers, they are also human beings who want to do the right thing.
Review:
 Summary of the argument should be concise: no more than one paragraph/issue
 The summary should highlight your best facts and arguments
E The Argument Section
(1) Introduction: Getting Organized
The first question to ask yourself before beginning to write this section is this: What is my goal?
As the appellant, you may want a reversal or a new trial or an evidentiary hearing. For the
appellee, the goal is usually a simple affirm. But the appellee needs to decide if he wants the
appellate court to affirm the trial court for the reasons the trial court cited, or if he wants to urge

the court to affirm for additional or alternative reasons. The appellee also needs to determine if
he will be raising harmless error – either as a main or alternative argument.
The second question is this: What is my best argument? Unless there is a weaker, but dispositive
argument (such as a question of subject matter jurisdiction), you should lead with your strongest
point and prioritize down from there. Primacy and recency are just as important to appellate
work as they are to trial work – you want to put your best arguments where your reader is
freshest.
Once you have prioritized your arguments – best done with a written outline – the next step is to
figure out what you need to support each argument. Which facts demonstrate that a confession
was involuntary? Or which disputed issues of material fact should have precluded summary
judgment? Then identify which statutes, cases or regulations support your analysis. Once these
key facts and critical items of legal support are identified, prioritize them within the section, and
make sure to cover each point.
For the appellee, after addressing all of your affirmative points, turn to explaining to the court
why your opponent’s arguments should be rejected. Explain what key facts he or she omitted or
downplayed in the opening brief, and distinguish the cases he or she cited.
For the appellant, you need to decide strategically how much you want to anticipate your
opponent’s arguments in your opening brief. Because the appellant has the right to file a reply
brief, that is usually the best place to tell the court why your opponent is wrong – there is no
need to clutter your brief with anticipatory arguments. As an appellant, however, if you know or
have a pretty good idea how your opponent will respond to your brief, you should be building
your case with that response in mind. It’s a bit of a chess game: if I say this, how will my
opponent respond? If I say it this way, or if I omit this detail, will I leave my client vulnerable to
attack? A good appellant can blunt a response by thinking strategically in just this way, and she
can do so without ever expressly acknowledging the other side’s argument.
 For example, we handled a case in which we were appealing a sentencing decision.

We anticipated that the other side would argue that we had waived our appellate
rights during the course of plea negotiations. When we filed our opening brief, our
argument addressed only the sentence’s legality; we did not argue that we had
preserved our appellate rights. While we anticipated that the defense would raise
waiver, we didn’t know that for certain, and waiver is an argument that is itself
waived unless it is timely raised. We wanted to leave open the possibility that our
opponent would drop the argument (he didn’t). We did, however, cover the terms of
the plea negotiations in some detail in our fact section. We included all of the facts
we would later rely upon, in our reply, to rebut any suggestion by the defense that we

had waived our appellate rights. As a consequence, we set up the foundation for our
reply brief, and kept our opening brief focused on the issue that we wanted the court
to consider.
(2) Argument: the Standard of Review
Rule 28 permits a party to create a separate section for the topic, or it may be included as the first
subheading under the argument section. Regardless of which version you choose, the statement
of the standard of review should ordinarily be one sentence, followed by a single citation. For
well-settled principles like this, there is no need to provide a string cite of cases standing for the
same proposition. Pick the most recent, most relevant one and leave it at that. The Ninth
Circuit’s website includes a link to a 300+ page book filled with applicable standards of review,
with applicable Ninth Circuit citations for each.
 Example: A trial court’s decision to exclude or limit evidence under Fed. R. Evid.
403 is reviewed for abuse of discretion. Tennison v. Circus Circus Ent., 244 F.3d
684, 688 (9th Cir. 2001).
The only pitfall to watch out for is including argument within this subsection; it is really only
intended to provide the court with the rule stating the level of deference it should afford the
district court’s decision. Any other point of substantive law should be saved for the body of your
argument.
(3) Argument: Structure
A well-reasoned and persuasive argument needs a structure, and one of the best is CREARC:
Conclusion, Rule, Explanation, Analysis, Rebuttal, and Conclusion. Pick the best brief or
opinion you’ve ever read and invariably, its argument/analysis section will use this structure.
And for tired writers, it provides a helpful path for keeping your points on track. It works in
every setting; the pattern repeats for each section within your argument.
For example, when responding to a criminal defendant’s appeal from a district court’s denial of
his motion to suppress, we could structure our argument this way:
Conclusion [Why the district court got this one right]: The district court examined the
totality of the circumstances and reasonably concluded that defendant was stopped, but not
arrested, and reasonable suspicion supported that stop.
Rule [The statute, regulation, or case authority that applies to this issue]: Whether a suspect is
arrested, for Fourth Amendment purposes, depends on the officers’ actions and on the crime
under investigation. Although courts use the “free to leave” test for most arrests, a different test

applies when officers are investigating violent crimes or they reasonably believe that a suspect is
armed.
Explanation [An important piece that lawyers often miss; it appeals to the judges’ pathos]:
Creating a different rule for high-risk arrests makes sense; we want officers to be able to
investigate without fear that they will be harmed. If a suspect is armed, it creates a potentially
volatile situation for the officers and the public.
Analysis [This is where we apply the law to the facts, emphasizing the important factual details
that support our premise]: Officers were responding to a 911 report that a suspect had pointed a
gun at a convenience store customer and threatened to shoot him. They arrived less than three
minutes after receiving the call, and Defendant was the only person in the area who matched the
911 caller’s description.
Rebuttal [This is where we tell the court why our opponent is wrong; writers often start with
this point, but it is less persuasive]: Defendant argues that he was effectively arrested when the
officers drew their guns, but he relies on cases that involve investigations into non-violent
offenses. He fails to cite or acknowledge case authority applicable to situations just like this one:
that is, where the defendant is reportedly armed and he dives into a bush upon seeing the officers
arrive in their marked patrol car.
Conclusion [Finally, we tell the court specifically what we want it to do]: Accordingly, the
district court’s order denying defendant’s motion to suppress should be affirmed.
Then we repeat the same structure for the next argument: Even if the stop was an arrest
requiring probable cause, the officers had developed probable cause by the time they
encountered defendant. [Conclusion]. Probable cause exists when the totality of the
circumstances gives rise to a conclusion that a crime has been committed (cite). [Rule]. It
examines the circumstances as they existed when the officers confronted them; it does not
employ 20/20 hindsight. [Explanation]. When they encountered defendant they knew: (1) the
suspect had pointed a gun and threatened to kill a convenience store customer who did not know
his assailant; (2) the customer identified himself and remained on-site to assist; (3) the call came
in late at night in a residential area, and defendant was the only pedestrian in the area; (4) as soon
as he saw the uniformed officers in their marked patrol car, he jumped into a bush . . . [Analysis].
Defendant quibbles with the district court’s probable cause determination because of minor
discrepancies between the 911 caller’s description and defendant’s actual appearance that night.
None of these minor differences matter, however, because . . . [Rebuttal.] The court’s alternative
finding that probable cause supported the stop is amply supported in the record and should be
affirmed. [Conclusion].
(4) Argument Headings

Once you have selected your lead argument – either your strongest point, or a dispositive point
(that may render everything else superfluous), your subsection should begin with an argument
heading that tracks your first issue statement.
 For example:
o The district court was well within its broad discretion when it refused to
allow plaintiff to call employees who never worked for Smith.
o Note: The first sentence following your argument heading should not repeat
the heading. Instead, assume that the reader has read the heading, and proceed
from there. And as with headings in the fact section, argument headings and
subheadings should be used effectively as an overall strategy to persuade.
(5) Argument: Part 3 – the Body
Putting together a solid argument section requires organization: outline first. While it may seem
like you don’t have time to draft an outline, doing so before you begin will save pages and
editing time later on in the process.
Your outline need not be highly detailed, but at a minimum, you need to identify the issues,
relevant facts, and the key statutes, regulations, and/or cases you will need to address each issue.
For example:
Venue was proper in Oregon:
Relevant Facts
a. D lived in Oregon;
b. The victim lived in Oregon;
c. The D drove the victim across country, assaulted her in
several different jurisdictions; and
d. The offense did not “end” until D and the victim returned
to Oregon.
Applicable Law
Government bears the burden: US v. Pace
Venue Statute: 18 USC 3237(a)
Venue for “continuing offenses: US v. Childs, Barnard
Ds cases are distinguishable -- cite and explain

Building the argument paragraph by paragraph starts with a topic sentence that provides an
overview for all other information included within that paragraph. Really good brief (and
opinion) writers are able to convey everything essential within the first sentence of each
paragraph: a reader could just read the opening sentences and still have a good grasp of what the
case is about. An example:
1. Venue Was Proper in Oregon. [Note: Section begins with a conclusion.]

This case involves a crime committed by an Oregon resident against a child who lived
in Oregon while the two traveled together on a cross-country trip. All of the
witnesses who testified at trial were from Oregon. Although the child, who was 8
years old when the crime was committed, could not identify exactly where defendant
assaulted her over the course of this trip, there was no question that the trip began and
ended in Oregon. [Note: the final sentence serves as a transition to the next
paragraph.]
Offenses that involve continuous, as opposed to discrete, criminal conduct are

governed by special venue rules. Section 3237(a) governs continuous criminal
offenses, and that statute provides . . .
The government bears the burden of proving venue by a preponderance of the

evidence. United States v. Pace, 314 F.3d 344, 349 (9th Cir. 2002). For continuing
offenses, this Court has recognized that it takes very little to demonstrate a connection
between the locus of the crime and the jurisdiction. United States v. Childs, 5 F.3d
1328, 1332 (9th Cir. 1993). For example, this Court found venue established in
Arizona for a defendant charged with transportation of stolen vehicles from Alberta,
Canada, to Oklahoma, when the defendant was seen test driving one of the stolen cars
in Arizona . . .
* * * * *
The body of your argument generally involves the application of legal principles to the facts of
your case. This is really the heart of legal analysis, and to be persuasive, you should be as
specific as possible. Simply stating that probable cause depends on a totality of the
circumstances, and then concluding that the circumstances in this case establish probable cause,
may be technically correct, but is generally unpersuasive. Instead, your analysis should tell the
reader why there was probable cause to support the search, and a particularly useful word to
remember to use to accomplish this: because. The word “because” forces the writer to articulate
why the court should reach the conclusion urged. So, for example: because police had
information from a confidential informant that a drug buy was to take place, and because that

information was corroborated by three independent sources, probable cause supported the
warrant to search defendant’s car.
(6) Practical Pointers
a. Avoiding Repetition & Block Quote Protocol
When applying legal principles to the facts of your case, avoid the temptation to simply copy,
cut, and paste paragraphs from your fact section into your argument section. While it is true that
any fact referenced in the argument section should appear somewhere in the fact section, it is
generally not a good idea to repeat material. Many judges (and law clerks) find repetition
irritating and unhelpful. They key is to use the facts laid out in the fact section, but to do so in a
different way. For example, your fact section may paraphrase what a judge said when explaining
why he chose a particular sentence in a criminal case. But if your issue on appeal involves the
adequacy of the court’s explanation for a given sentence, in the argument section you may want
to quote the judge directly. So paraphrase in the fact section, and quote in the argument section,
and you’ve covered the same information, but in a different way.
 A special note about block quotes: First, avoid them. Second, there are times when
the words used (particularly in contracts or comments from the trial court) are critical,
so you will have good reason to quote them directly. It is rarely ever appropriate or
effective to block quote information from case authority. For facts that have to be
quoted, however, there is a better way to do this:
o Trim the block quote down to its essence, and eliminate anything not
necessary to a fair understanding of the issue – i.e. do not selectively omit
information that may be unhelpful to your position.
o If, after trimming, the quote is still more than half a page, look for ways to
break it up into smaller pieces. Then between the pieces,
summarize/paraphrase what the quoted material means. Write these in-
between sections in such a way that, if the reader were to skip over all of the
block quoted material, he would still come away with an understanding of
what happened and why you should win. For example:
 The district court selected a high-end 120 month sentence, citing

several reasons for doing so that included defendant’s lengthy criminal
history, and his escalating acts of violence:
 “You’ve been in and out of the system for the last 20 years. I
don’t see where you have ever held down a job, or contributed
to society in any positive way. And I’m concerned about the

trend that I see here – you started out stealing cars, turned to
breaking into houses, and now you’re robbing banks.”
 The court also expressed concern about defendant’s lack of remorse,
and the need to protect the public from his criminal activity:
 “I’ve seen no sign that you appreciate the wrongfulness of your
actions, or that you have any empathy for the bank tellers who
were terrified by your actions. I have to think of your victims –
both the ones from your past – and the potential victims in your
future, in selecting an appropriate sentence here today. I want
to get your attention with this sentence.”
Another way to avoid repetition is to restructure the way in which you tell the story. For
example, the fact section may tell the whole story of the defendant’s cross-country trip with the
eight-year-old child and the abuse he inflicted on her during that trip, her interview and
examination upon their return, and his subsequent arrest. When addressing whether the district
court erred when it found venue proper in Oregon, you may cite the venue statute and a case
interpreting it, and then highlight only those facts particularly relevant to the venue issue:
 The district court’s determination that venue was proper in Oregon makes sense.
Defendant and the victim were both Oregon residents, the trip started and ended in
Oregon, and all of the witnesses, including the officer who interviewed the victim,
and the doctor who conducted the examination, were Oregon residents.
b. Examine the Premise
For the appellee, a good responsive argument often entails dissecting the opening claims, and
questioning either the factual or legal premise for those claims. For example:
 Appellant’s Opening Brief: “The court overruled Ms. Smith’s timely objection to this
unfairly prejudicial hearsay evidence.”
 What are the premises?
o First, that the government introduced an inadmissible hearsay statement.

 In reality: the evidence was admitted as co-conspirator non-hearsay
under Fed. R. Evid. 801(d)(2)(E).
o Second, the defense made a timely hearsay objection.

 In reality, the defense objection at trial was relevance. So the
government may argue that the objection was not properly preserved.

o Third, admission of this testimony was unfairly prejudicial.
 Almost all relevant evidence offered by the government in a criminal
case is prejudicial to the defense; the question is whether the evidence
was relevant to establishing an element of the crime charged, was it
necessary to proving the case, and/or were there any other viable
alternatives?
 So the appellee’s answer to the appellant’s argument may be structured like this:
o First, the challenged testimony was not hearsay because it fit within the co-
conspirator definition of non-hearsay. This non-hearsay rule applied because:
(1) the statement was made by a co-conspirator; (2) in furtherance of the
conspiracy; and (3) during the course of the conspiracy. Moreover, the
testimony was relevant to establish defendant’s role in the conspiracy, since it
revealed that he was assigned the role of the getaway driver.
c. Using Case Authority Effectively
Using statutes, regulations and cases involves prioritization. Ordinarily, if a case involves a
statute or regulation, it is best to begin your argument section with some discussion of that
provision. Summarize or paraphrase statutory context, and quote only those portions most
critical to your argument. Rely on cases interpreting the statute only if necessary – if the
statutory language is clear, there is no need to cite cases that simply recite the statute.
Case authority should be prioritized:
 Binding precedent – either from the Supreme Court or your circuit;

 Other federal circuit authority;
 District Court opinions from your circuit;
 Respected, learned treatises;
 Everything else.
If you are writing a brief for the Ninth Circuit, chances are very good that the panel will neither
care nor find authority from the N.D. Georgia terribly persuasive. If your case involves an issue
that your circuit has undoubtedly addressed – e.g. summary judgment in a Title VII case – the
court will want to know first and foremost what the Supreme Court and its own prior precedent
have said about that subject. If another case, from another circuit, involves more analogous facts
or issues, then you can cite that case as persuasive authority. But be sure to check that case’s
provenance and be wary of urging your court to adopt a holding of another court unless the other

circuit has comparable precedent. So if the other circuit relied on precedent inconsistent with
precedent in your circuit, the other circuit’s case may lose all or most of its persuasive authority.
Generally, other circuit authority, district court cases, treatises, law review articles and the like
are only worth citing if and when there is no binding circuit authority directly on point. And
even then, the case or treatise should only be cited or discussed after laying out binding
precedent.
Prioritizing case authority should not be limited to those cases favorable to your position. Any
binding, adverse authority must be cited. In most jurisdictions, this will be required by the
Model Rules of Professional Conduct (in Oregon, ORPC 3.3(a)(2)). If you have a good faith
belief that you should prevail in spite of binding, adverse authority, that reasoning must be
spelled out explicitly in the brief. This is one of those non-negotiable points: there is no quicker
way to destroy your credibility with the court than to hide or evade binding precedent.
And although no ethical rule requires it, if there is no binding authority in your circuit, but there
is adverse authority from another circuit, you should bring such adverse authority to the court’s
attention for several reasons: (1) if you don’t cite it, a judge or her law clerk is apt to find it
anyway; (2) in general, most circuits hold to the principle that they don’t want to create inter-
circuit splits absent good reason to do so; (3) your brief may be your only opportunity to explain
to the court why it should not follow the holding or analysis of another circuit; and (4) it will
enhance your credibility with the court to be as open and honest as possible about the state of the
law governing your issue. If other circuits are divided on your issue, describe the split, and then
urge the court to follow the circuits favorable to your position. Look for common prior
precedents that may link to cases within your circuit. For example, you might urge the Ninth
Circuit to follow the Sixth Circuit rather than the First Circuit because the Sixth Circuit opinion
relied on prior decisions that parallel decisions from the Ninth.
Once you’ve identified the cases to include in your argument, you’ll want to address them in a
manner that conveys to the court which ones are critical, i.e. those cases that you will want the
judges and clerks to actually read. While Celotex may need to be cited in an appeal from a
summary judgment ruling, there may be no need to rely on that case for any other point, and
thus, no need to discuss the facts from Celotex at all.16 There should, however, be a few cases
that are factually and legally on point, and you will want to discuss those cases in some detail.
There may be other cases that help illustrate or amplify points, and these supporting citations
may be briefly addressed with parenthetical citations.
For the crucial cases that you really want the court to read in full, be sure to discuss those
decisions in the text of your argument. Do not, under any circumstances, stick them into a
16
Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

footnote or bury them in a string of parentheticals. Important cases need to have a starring role
in your brief, which means they need speaking parts. That does not, however, mean that you
should include a detailed recitation of the facts of those cases.
 Don’t do this: In Smith v. Arizona, the defendant was arrested following a series of
home invasion-style robberies. At the scene of one of those robberies, police
recovered DNA from a door knob that was ultimately traced to the defendant. Police
obtained a search warrant for defendant’s residence, and while executing that warrant,
they asked to speak to defendant and he consented. In reviewing the validity of that
consent, the Court noted the following relevant factors . . .
 If your case involves an issue about whether your defendant voluntarily waived
Miranda and agreed to talk, then avoid the unnecessarily preliminaries and cut
straight to the chase: Whether a defendant’s consent to talk is voluntary is a mixed
question of law and fact guided by several factors. Smith v. Arizona. [Then discuss
some of the relevant or analogous facts from Smith if there are any; if not, move on to
another, more factually analogous case.]
As these two examples demonstrate, you want to lead off with your primary reason for citing the
case, then fill in with details later if they are helpful to your analysis. Remember that your
audience has little patience and wants your brief to get to the point quickly.
Sometimes you may be addressing an issue that involves a highly fact-intensive inquiry, and the
court must decide where your case fits within a spectrum of prior authority. For example,
whether the totality of the circumstances gives rise to probable cause to support a search warrant
is a highly fact-intensive issue; there will be cases holding that officers had probable cause, and
cases holding that probable cause was lacking. For the prosecutor, you will want to demonstrate
to the court that the facts in your case are more analogous to the cases upholding probable cause;
the defense will want to establish the opposite. For issues like this, you’ll want to pick out,
discuss, and highlight those cases that are most factually analogous to yours. But there may be
many other cases that also illustrate your point, and citations with short, parenthetical
explanations may be an efficient way to demonstrate that the weight of authority favors your
side. Parenthetical string cites are, however, difficult to absorb, so the use of this device should
be limited: pick out the best cases, and keep parenthetical explanations to a bare minimum.
Quote judiciously from cases, citing only relevant portions of the decision. Block quotes from
case authority are rarely ever appropriate or useful.17 That’s because lawyers who use block
17
See Brian Garner’s short video interview with Chief Judge Alex Kozinski for a colorful description of
what one federal judge thinks of block quotes. In sum, he doesn’t read them and he considers lawyers

quotes from cases tend to leave it up to the reader to divine the point. That’s the advocate’s job,
and no good appellate advocate will try to shunt her work off onto someone else.
One final tip on using case authority involves when not to cite a case: at the end of a section or
subsection. In most briefs, you should be addressing the legal standards governing your issue at
or near the outset of the section. As you conclude, and apply those legal principles to the facts of
your case, there is no need to re-cite the original case setting forth the legal principle. Your
concluding sentence should end on a high note that emphasizes your best facts and principles,
and there is no need to divert the reader’s attention to some prior case authority.
d. Explain the Options
Oftentimes, there are a number of arguments that you may want to advance to convince the court
that you should win. The court needs to know whether it has to address all of these arguments,
or whether it need only address certain claims so that alternative arguments are rendered moot.
For example, if the court concludes that the trial court did not abuse its discretion when
admitting evidence, it need not decide whether the ruling was harmless. Similarly, if the court
concludes that the good faith exception to the exclusionary rule applies, it need not address the
question of whether probable cause existed to support the warrant.
Some arguments are, however, interdependent and the advocate needs to highlight this fact for
the court. For example, it may be that the court has to first decide whether an arbitration clause
applies before turning to the merits of the dispute, or it may have to decide personal jurisdiction
as a threshold inquiry to deciding whether a contract was breached.
In addition, if and when a case raises an issue of first impression within a Circuit – particularly
when the issue is one likely to recur – it is a good idea to make this point clearly in your brief.
While you need not ask the court directly to publish, you can make the pitch by explicitly
pointing out that there is no published authority from the Circuit on this point to date. If the
court fails to take the hint and you receive an unpublished opinion anyway, you may always send
a letter or file a motion with the court requesting publication (and explaining why you think it
should publish). Waiting until the court rules may be the better approach, because the ruling will
give you a better idea about how broadly or narrowly the court approached the issue, and
whether the court’s holding is case and fact-specific.
e. Maintain a Respectful Tone
who use them lazy. http://www.lawprose.org/interviews/judges-lawyers-writers-on-

writing.php?vid=kozinski&vidtitle=Hon._Alex_Kozinski_On_Overquoting

The adversarial process demands that we take a position and urge the court to take a specific
action: affirm, reverse, or remand. But effective advocacy works best when it presents itself in a
manner that is interesting, but to a certain extent detached. The court needs to know that it can
trust the lawyers to serve as a screen for the client’s interests and biases: even though I want my
client to win, I am not willing to achieve that goal at the expense of my professional reputation.
To that end, the tone that we take – both towards our opponent, opposing counsel, and the district
court – is important.
When it comes to appellate “pet peeves,” one that regularly appears at or near the top of the list
is lawyers who take pot shots at trial judges. The Fourth Circuit took the opportunity to chastise
counsel in a published opinion for critical remarks leveled against the district court and opposing
counsel. United States v. Venable, 666 F.3d 894, 904 n. 4 (4th Cir. 2012). Describing the
district court’s ruling as “crabby,” was not a good idea. Keep in mind that federal judges all
attend the same annual conferences, they play golf and tennis together, dine together, and often
are long-time friends and colleagues – attacking one of them will not help your client.
When it comes to trial judges, construe this advice very broadly. Arguing that a judge “ignored”
certain evidence is generally not accurate. The fact that the court ruled in favor of the other party
does not, in and of itself, mean that she failed to consider your evidence. Unless you are dealing
with an issue in which the court had to specifically address each argument (for example, Fed. R.
Crim. P. 32 requires that district courts make findings on certain sentencing disputes), you
cannot fairly claim that the judge failed to make a decision on a disputed issue. So instead of
accusing the court of “ignoring” your evidence, you could simply argue that summary judgment
was inappropriate because you proffered evidence in support of each element of the claim. You
might point out that in ruling on summary judgment, the court failed to mention certain evidence,
but leave it at that. This same principle holds true for claims that a district court
“misunderstood,” “failed to appreciate,” “misapprehended,” etc.
A respectful tone should also be employed when addressing the words or actions of your
opponent or opposing counsel. One of the biggest complaints jurors have about lawyers is that
they hate to see them being “mean” to each other. Judges feel the same way. So even if your
opposing counsel has you seething (and I know how this feels), to maintain your own
professionalism, any anger and resentment has to stay out of your brief. This means that you
have to be cautious about your selection of adverbs and adjectives – just about anything ending
in –ly will need to be removed before filing (i.e. “utterly,” “completely,” “frivolously,” etc.). It
is far better to let the actions speak for themselves, and let the judges draw their own
conclusions.
 What if your opponent’s brief contains misstatements about the law or the facts of
your case?

o If the misstatement is immaterial to the case, simply include the correct fact
(along with a citation to the record) in your brief.
o If the misstatement is material to the case, let the court know the correct fact,
and specifically (but respectfully) let the court know that your opponent got it
wrong. For example:
 Plaintiff argues that her cross-motion for summary judgment should

have been granted because she filed an affidavit establishing that her
injury occurred within the limitations period. D. Br. at 22. She failed,
however, to identify anything in the record to support this assertion. In
fact, all of the evidence before the district court supported the opposite
conclusion: plaintiff filed this action well after the limitations period
expired. See ER 25, 37, 42.
 Defendant relies on Alhambra to support his theory that his confession

was coerced. D. Br. at 15. Contrary to the defense suggestion, that
case actually reversed a district court’s grant of a motion to suppress
evidence.
f. For the Appellee – Use the District Court’s Opinion to Your Advantage
Many brief writers note in the fact section that they won the motion or trial issue below, and then
never mention the district court’s opinion or analysis again. If the appeal involves a pure issue of
law (e.g. statutory construction), then the district court’s analysis may carry very little weight. It
is still worth mentioning, however, because it means that at least one federal judge agreed with
your position. For issues involving more deferential standards of review, however, such as fact-
findings or discretionary calls, then the appellee’s best argument is almost always one that
focuses on the deference afforded the district court. For most administrative appeals, you don’t
have to convince the Court of Appeals that you are right, you need only convince the judges that
the ALJ or IJ relied on some shred of evidence to support her conclusion. Don’t make the appeal
more difficult for yourself by re-trying the case anew; urge the court instead to follow the lead of
that brilliant trial court judge (remember? The one you play tennis with at the judicial
conference?).
And a close corollary to this principle is the harmless error argument – the appellee’s friend.
Again, for issues involving discretionary calls (such as evidentiary rulings, jury instructions, and
the like), you should be examining whether to raise an alternative argument that, even if the trial
court did err, any error would not have affected the verdict because the issue would not have

affected the outcome. In criminal cases, this often involves convincing the court that the
evidence against this defendant was so overwhelming, a single evidentiary ruling could not have
affected the verdict even if erroneous.
F. Conclusion
There are two schools of thought on conclusions: most DOJ/USAO appellate lawyers favor the
one sentence conclusion that simply lets the court know precisely what you want it do so:
affirm, reverse, and/or remand the judgment. For example: This Court should affirm the district
court’s judgment. This approach is direct and helpful, and it omits throat clearing phrases like:
“For the reasons set forth above,” or “Based on the foregoing,” etc. Those who subscribe to this
simple form suggest that your closing flourish should appear at the end of your argument section.
G. Editing
Justice Scalia has said that he will often put a draft opinion through ten re-writes before it leaves
his chambers. While most of us lack the time (or the four law clerks) to scrutinize our work this
closely, you can imagine how careful judges respond viscerally to sloppy briefs. Good brief
writing takes time, and a good portion of that time should be devoted to editing. If it takes me 8
hours to write a brief, I expect to spend at least 4 hours editing and re-drafting. And time has
taught me to edit everything at least twice. And everyone should have an editor – someone else
who will review your brief critically, and provide helpful feedback about errors and points that
should be clarified.18 All legal writers should also use editing resources: I keep a copy of
Garner’s Red Book on my desk, and there are a number of good on-line grammar resources
(word rake, grammar girl, etc.). When in doubt, look it up.
First, good editing takes time. When your draft is complete, you should walk away from it for at
least 24 hours. Do some other work, go for a run – anything to give yourself some distance, so
you can return to it with fresh eyes. One of my students commented that the best brief she had
ever written was the brief she would have written after preparing for oral argument. If only we
could give ourselves several months between draft and editing, and the benefit of a reply brief,
and ample time to reflect and brain storm. Barring that, the following are some tips and things to
look for as you review your brief:
1. Treat every sentence like moving day: Do I need it? Does it support my premise, or
does it help explain the story? If not, get it out of there (send it to the Good Will).
2. Do the issue statements match the argument headings/subheadings?
18
And pick someone who you know will take the time to read your brief carefully and who will provide you with
real, critical feedback. Resist the temptation to take your brief to the easy grader who will read your brief in an
hour, and return it to you with a smiley face or an “excellent!” written on the top. The easy graders are great for
your ego, but they generally do nothing to help improve the quality of your work.

3. Is each issue raised in the opening brief answered somewhere in your brief?
4. Are sentences too long or convoluted? Can we break them down and increase
readability?
5. Are paragraphs too long? Do they take up the entire page (or more)?
6. Does the “summary of the argument” match the argument? Is it persuasive?
7. Does the fact section tell an evocative story?
a. If not, does it read too much like a police report? If I change some of the words,
will it read more like a story (e.g. can “vehicle” be a “jeep?”).
b. Are there pictures or diagrams I could use to better explain a point?
c. Is there any “argument” in my fact section that needs to be removed?
8. Watch for repetition: this is often a red flag that you may want to consider re-structuring
your argument (perhaps combining sections to avoid repetition).
9. Are my argument headings too long (i.e. more than 2-3 lines)? Or too short (i.e. too
bland and neutral)?
10. Have I been as specific as possible throughout my argument section? Is there any place
where I could provide more examples, or greater detail to support my point?
11. Are all of my legal citations clear? Each citation should directly support the proposition
stated; if it does not, I should use a “see” and include a short, parenthetical explanation.
12. Does the first sentence of each paragraph accurately summarize the contents of that
paragraph? If there are sentences that don’t match the topic, should they be moved
elsewhere (or do I need them at all)?
13. Does the last sentence of each paragraph finish the thought? When a paragraph ends with
a case citation, this often means that the writer has failed to complete the analysis. For
example:
 Plaintiff’s doctor testified that she could stand for up to two hours in an eight hour
workday, she could sit for up to six hours, and she could lift up to twenty pounds.
Courts have recognized that sit/stand and lifting restrictions of this kind are consistent
with “light” work. Burch v. Barnhart, 400 F.3d 676, 684 (9th Cir. 2005). Therefore,

the testimony in this case supports the ALJ’s conclusion that plaintiff was capable of
light work.
14. Does the last sentence include a transition to the next paragraph?
a. If not, add or modify the last sentence;
b. If there is not a clear transition to make, consider including a new section or
subsection heading instead.
15. After re-reading your brief, ask yourself: Are you persuaded? If you were a judge who
had to decide this case, would you rule in your favor? If the answer is “no” or if you are
not sure, ask yourself why? Is there an additional fact you should bring out or
emphasize? Or is there a question that the brief doesn’t answer? Do you need to do
some additional research?
Judges also do not like typos or grammatical errors. While you are unlikely to ever lose a
case because of a typo or mistaken syntax, such errors can be distracting and they can detract
from your credibility. One judge from the Eighth Circuit has actually sent red-lined copies of
briefs back to lawyers in the hopes of improving the quality of the written work he receives.
The following are some of the most frequently seen errors in briefs:
1. The possessive s: It’s = it is Its = its possessive

a. CDs = plural CD’s = possessive CDs’ = plural possessive
2. Singular/plural disagreement: e.g. the jury rendered their verdict, should be either: the
jury rendered its verdict or the jurors rendered their verdict.
3. That/which: “which” needs to be preceded by a comma; use “that” without a preceding

comma.
4. Unclear pronouns: The doctor examined the patient and he said he felt ill.
a. Who felt ill?
5. Compression: tucking too many facts and details into a single sentence.
6. Change passive voice into active: instead of: the bank was robbed by the defendant;
write: Defendant robbed the bank.
7. Avoid and/or cut repetition. Red flags include: “As previously stated,” “Again,” “It
bears repeating that . . .”

8. Cut excessive verbiage. For example, the words “of” and “by” are often used in phrases
that can be easily simplified and shortened.
a. The Department of Defense: Defense Department.
b. A sentence of imprisonment: A sentence.
c. Defendant does not offer a challenge to: Defendant does not challenge.
d. Eliminate throat-clearing phrases such as: “As previously mentioned . . .” or “It is
worth noting that . . .”
9. Block quote check:

a. Are they all as short as possible?
b. Do I need to break them up?
c. Have I adequately paraphrased them before the quote, and summarized their
import following the quote?
10. String cite check:

a. Have I included unnecessary, additional citations for the same proposition?
i. For well-settled principles (such as the standard of review), pick the most
recent, most factually analogous citation. But just pick one.
11. Eliminate unnecessary qualifiers. For example: “It is the government’s position that . . .”
a. Instead: just argue. For example: Probable cause supported the affidavit.
12. Footnote check: Anything in a footnote should be dispensable. If the judge never reads
this footnote, am I O.K. with that? If the answer is no, move the material to the text.
13. Avoid “big” unwieldy words. Use “confuse” instead of “obfuscate.”
14. Are all of your references consistent?

a. Refer to “defendant” or “Smith,” but pick one and use it consistently throughout.
For cases involving multiple parties, it is easier for the reader to use names.
b. Rule 28 discourages the use of “appellant” or “appellee.”
15. Avoid (or use sparingly) devices to emphasize certain words or phrases, unless such
emphasis appears in the original, or unless you need to highlight portions of a statute or
contract. Within your argument, however, your word choices and placement should do
the work for you without the need of italics, bold, underlining, or worst yet, a
combination of the three.
16. Avoid acronyms. Even if you spell it out and define it at the beginning, unless it is a
familiar acronym (e.g. FBI, IRS), your reader will have a difficult time remembering it,

and this will be compounded if you use several, different acronyms. Instead, select a
word or two that describes your acronym. For example, “Bureau of Prisons,” can be
referred to as “Bureau” in lieu of “BOP.”
17. Strike trite metaphors and tired clichés. As a judicial law clerk, I swore that I would
never, ever use phrases like: “he can’t see the forest for the trees,” “it’s like comparing
apples and oranges,” or “it’s a red herring,” because I saw them used in briefs over and
over again. Justice Scalia has lamented the use of the phrase “and its progeny,” as trite.
And one of the best judges I worked for grew so weary of the apples/oranges phrase, that
he prepared a short speech in which he defended the practice of comparing apples to
oranges. He noted – correctly – that the two fruits actually can be compared through
physical description and on a genetic level.
 Analogies can, however, be very helpful, particularly when trying to describe

something complex or an area that is probably unfamiliar to the court. The key is that
they should be fresh and apt. For example, in defending a Sentencing Guideline
provision, and AUSA wrote that the Sentencing Commission used a “meat cleaver
instead of a scalpel,” but noted there was nothing unconstitutional about the
Commission’s choice.
Oral Argument
Usually, several months (if not years) will have passed between the time you file your brief and
the time your case is set for argument. If your case is scheduled for argument, one of the first
things that you will want to do is to update your research. Go through the briefs (yours and your
opponents) and cite check the important cases. If there is new, relevant case authority, you
should notify the court with a Rule 28(j) letter. Such letters cannot exceed 350 words, they may
contain argument, and there is no limit to the number of letters that may be filed. In general, you
should provide these updates to the court as soon as possible. If you wait until the last minute,
you run the risk that the panel will not have had an opportunity to read your new cases, and you
will have missed the opportunity for the court clerks to incorporate the case into a bench memo.
But submitting the letter before argument is important: many judges will not permit lawyers to
comment upon or argue cases that have not been cited prior to oral argument. Never, ever
deliberately fail to cite a case in an effort to sandbag an opponent.
While preparation begins with re-familiarizing yourself with the case, this process is also
informed by the primary purposes of oral argument:
1. Answer the judges’ questions;

2. For the appellee, respond to issues raised in the reply brief;

3. Demonstrate confidence in your case, and that you have thought through the implications
of what you are asking the court to do (i.e. create precedent for future cases);
Preparing a speech is unlikely to serve any of these goals. And in most cases in which a case has
been set for argument, it is because one or more of the judges actually has questions that he will
want answered. Effective oral advocacy involves good listening skills.
Being able to listen carefully to the questions and respond appropriately will require that you
tame your nerves. One of the best ways to accomplish this is preparation. You must know the
facts in your case as well as you know your own personal history. If someone were to ask you
where and when you were born, you could respond immediately and without hesitation. That is
the level of mastery that you want to achieve with your case facts and the law applicable to your
case. Here are some tips on preparation:
1. Read and master the record. For many of us, that involves taking handwritten notes, but
whatever method you use to digest information should be employed here.
2. Read and update case authority (see Fed. R. App. 28(j)).
3. Reconnaissance:
a. If and when you learn the identity of your panel, read any opinions those judges
may have written on your subject matter. This may give you a sense of what
questions they may have, since most judges strive for consistency.
b. Visit the courthouse and courtroom, and make sure that you know in advance
where to check in, where to sit when your case is called, and the logistics of the
podium (i.e. is there a shelf for a notebook, how does the timer work?).
4. Try to think like a judge: What questions might you have? What are your weaknesses?
And how do you intend to respond to questions about those weaknesses?
a. Many appellate lawyers actually write out anticipated tough questions and
answers, and they practice articulating those answers out loud.
b. Part of this process will involve cutting the fluff and getting your answers pared
down to their essence; hot panels will not give you much time to answer, and 10-
20 minutes goes by very quickly, so like your writing, your answers must be
concise.
5. Draft an outline – not a speech – of three to four points that you would like to raise, given
the opportunity. But don’t feel compelled to stick to those, particularly if the court has no
questions or seems uninterested in one or more of the issues.

6. Have key record excerpts and citations memorized and/or handy. For example, if one of
your issues on appeal involves whether the district court adequately explained its
sentence, you will want to have the specific transcript cites at the ready. Or if your issue
on appeal involves the meaning of a particular statute, you will want to have the text of
that statute in hand when you go up to the podium. Often, a paraphrase simply will not
work and you need to argue from actual text.
a. Many judges ask “where in the record” questions, so you’ll need to have specific
cites ready. For example, if you are appealing a summary judgment grant, you
will have to be prepared to tell the court where it can find the genuine issues of
material fact in the record before the court. And these citations must be specific:
e.g. ER 28, 216, 1425, etc.
i. Some of these judges have admitted that they know the answer to the
“where in the record” question already, but they want to make sure that
they haven’t missed anything, so this is your opportunity to ensure that
their mastery of your record is complete.
7. Think about natural links between your points, and this will help you to segue from
answering a judge’s question to raising a point you planned to make in your outline.
8. A couple of popular themes: the district court got it right, and we should win because of
the deferential standard of review.
9. Practice: hold moot courts with your colleagues serving in the role as judges.
a. Prior to your moot, you should also practice making your points, and answering
questions out loud. Just thinking through the issues in your head will not suffice –
testing and refining your answers requires articulation.
b. Volunteer to serve as a moot court judge for your colleagues, for law school
competitions, and the like. Seeing argument from a judge’s perspective will help
you see what works and what isn’t effective.
c. In our office, lawyers arguing an appeal for the first time will run through at least
two moot courts. We’ll hold one approximately five days before the scheduled
argument date, and one within a day or two of the argument. There needs to be
enough time between the moot and the argument for the lawyer to modify his
points, conduct additional research, etc.
The Ninth Circuit typically notifies attorneys that a case set for argument will be submitted on
the briefs within two weeks of the calendared date. As a consequence, most of us begin our
preparation in earnest two weeks out. Preparation invariably takes more time than you think it
will, so you should not be in trial the same week an argument is set. Something will have to
move or you’ll need to enlist someone else’s help. Remember that your case could well shape

future precedent, so it’s important. And while many judges tell us that oral argument rarely
changes the outcome of a case, they have seen instances in which cases were lost at oral
argument, the breadth of a ruling was affected by argument, or the argument in some way shaped
the outcome.
While preparation is critical to an effective oral argument, there are a few other steps you can
take to improve your execution:
1. Answer questions with a “yes” or a “no,” then follow-up with an explanation.
2. Maintain good posture and eye contact.

a. Judge Bright has observed: “the podium casts no vote.”
3. Keep anything that makes noise away from you: this includes clicky pens, pocket
change, etc.
4. Feel free to use hand gestures, but these should be natural (not forced).
a. You want to avoid grasping the podium so hard that your knuckles turn white.
5. Demeanor: look like you want to be there. You may be terrified, but most of us relish
the opportunity to finally get into court and have a conversation with the judges about our
case. It is far more pleasant to talk with someone who is in a good mood. Think about
your favorite professors – most of them were great because they were enthusiastic about
their subjects. Capture that spirit.
a. Keep in mind that not all questions are hostile. Many judges are former appellate
advocates themselves, and they will sometimes ask questions that include a
roadmap for what they think you should be arguing. Don’t miss those gifts.
Other times, the judges on your panel may have differing views, so a question
may be posed by one judge to help bring around the other judge.
6. Pace: for most of us, we need to slow down. While you will be anxious to make your
points, it is far better to make fewer points at a reasonable pace than to cram a bunch of
material into a ten-minute argument. Information conveyed too quickly simply doesn’t
sink in.
a. Do not be afraid to pause before answering a question. Some judges actually
appreciate the notion that you are thinking about their question and how best to
respond before you begin to deliver your answer.
b. Pauses are also often helpful when emphasizing a point. Give the judge a
moment to absorb your point.

7. Never, ever, interrupt a judge. They can (and frequently do) interrupt us, but this is not a
spot for the golden rule. The problem with talking over a judge is threefold: (a) the
judge will consider it rude; (b) the judges cannot hear what you are saying when more
than one person is talking; and (c) you can’t hear the judge’s question if you are talking at
the same time. Advocates must always show respect for the court, even if they may not
respect a particular judge. Remember: these are the judges who will be deciding your
case – do not tick them off.
8. Hostile questions: be respectful, but hold your ground.

a. It is pointless to argue with a judge over what a case holds or how a judge views
evidence that he or she has personally seen, but you can disagree with a judge’s
characterization of such evidence or case authority.
i. For example, if the judge says: “Counsel, I’ve watched the videotape, and
the officer clearly reached his arm into the car’s window before defendant
stepped out.” Your response should not be “no he didn’t,” because that
won’t get you anywhere. Instead: “Even so, your honor, at that point in
the encounter, the officer reasonably feared for his safety. So even if he
did reach in at that point, he was legally justified in doing so.” Note that
you haven’t conceded anything, but you’ve given the court a reason to
hold in your favor even if the judge interprets the video in a way that you
believe is erroneous.
b. In a similar vein, be wary of the question that incorporates an incorrect fact. You
will not be able to answer “yes” or “no” before clarifying the point.
i. For example, a judge asks: “But why shouldn’t the defendant’s statements
have been suppressed when he was clearly intimated by the officer?”
“Your honor, the witness did not actually testify that he was intimidated
by the officer. On page 96 of the ER, defendant testified that he feared
reprisal by his co-conspirator.” Then the seque: “And the Supreme Court
has held that suppression is only warranted to deter unlawful police
overreaching. If the stress defendant felt was from other sources,
suppression was unwarranted.”
ii. Another example: “But the district court did not interpret the testimony
that way. On page 10 of the court’s opinion, it found the officers credible
and the defendant incredible. Those credibility findings are entitled to
deference.”
c. Sometimes slowing your answers down, can simmer down a hot panel. You can
physically demonstrate your confidence in your case by remaining calm. You
may even step back from the podium to ease tension with a hostile judge.
9. A few tactics to avoid:

a. Never plan to use humor. If it happens at all, it should be unplanned and
prompted by the court.
b. Never praise, denigrate or defer a question.
i. For hypothetical questions, avoid: “but that’s not this case.” The court
knows this, and that’s why the question is hypothetical. The court is
testing how broadly you intend for your argument to reach. If you cannot
give a definitive answer, far better to respond: “I don’t know. That would
be a much more difficult case than the one we have here.”
c. Never invent an answer. Far better to respond honestly with “I don’t know, but
I’d be happy to look that up and follow up with a letter.”
d. “I wasn’t the trial lawyer” isn’t an excuse for anything. If the case was assigned
to you for the appeal, it’s your responsibility to know the case.
i. If, however, the question calls for an answer that is not in the trial record,
your response should be: “Your honor, that is not in our record. I can
answer your question, but it would require me to do so based on
information beyond the record.” Then leave it to the court to decide if it
still wants the answer.
e. Avoid “I think,” “I feel,” “Our position is” clauses. They diminish the import of
what you are saying. As with your brief, just argue affirmatively.
f. Never thank the court for the privilege of being there, tell the court that this is
your first argument, or make other fawning, silly comments. Argument time is
short, so don’t waste it.
g. If the court had a lot of questions for your opponent, and no questions for you,
know when to sit down and shut up. Judges appreciate advocates who pay
attention to their verbal and non-verbal clues. Avoid snatching defeat from the
jaws of victory.
i. That said, most judges expect you to say something. For example: “We
stand on the arguments in our brief and urge this Court to affirm the
district court for all of the reasons identified in the court’s opinion.
Defendant’s consent to the search was freely and voluntarily given, and
his arguments on appeal rest on his own version of events, which the
district court found incredible. That adverse credibility finding is fatal to
defendant’s appeal. Unless the court has questions, we submit.”
10. Closing: if possible, you want to end your argument on a high note. Many of us prepare
or have something in mind that we’d like to close with (given the opportunity).
11. What to take to oral argument: the briefs, the excerpts of record, your case binder. Do
not plan to use exhibits or charts – they tend not to work well given the time constraints
in appellate court.

12. What to take to the podium? This largely depends on the complexity of the case, your
level of experience, and whether the podium is capable of holding much material.
a. Many lawyers are now using iPads and take these with them to the podium, with
relevant excerpts highlighted (e.g. key statutes, transcript pages, etc.). Others use
binders for this same purpose
b. Some take a bullet point list or “panic sheet” to refer to just in the event they draw
a blank, or need to refer to a lengthy list of ER cites.
c. Some take nothing at all. The benefit of this method is that it better fosters the
conversation that you want to have with the judges about your case. If you have
truly mastered your record, this method should be achievable.
13. What to wear? Some judges have been complaining about sloppy or inappropriate attire,
including track suits, sandals (with socks), plunging necklines, mini-skirts, and cartoon
character ties. While you need not restrict yourself to dark suits and white shirts, your
attire should be clean, well-fitting, and professional. It should not be a distraction. As
one Sixth Circuit judge noted about an attorney who appeared in a sexy, low-cut dress:
“She must have a terrible case if she expects to distract us with that.”
a. One of my pet peeves: the sheep dog look. Eye contact is an important part of
establishing your credibility with the court, and it is difficult to accomplish that if
your eyes are covered by hair. Equally distracting is the hair that keeps falling
into your face, requiring that you push it back repeatedly.
14. Improve: very few of us walk away from an oral argument feeling like we nailed it.
More often than not, we return to our offices and begin to think of all of the things we
wished we’d said, or regretting the missed opportunities to make better points. Most
courts audiotape arguments, and these are helpful tools to improve your skills. As painful
as it may be to relive, listen to your arguments and think about ways you could do better
next time. Did you speak too fast? Did you fail to respond to a question directly?
Consider this an opportunity to become a better advocate.
a. Remember too that skills develop with practice. Consider volunteering to handle
arguments for other people in your office (especially those folks with the
“countdown to retirement” clocks).

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Appellate Advocacy Page 1

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Federal Appellate Courts

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The Appellate World

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Strategic Considerations: Appellant v. Appellee

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Here’s what was in the trial memo:

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Creating the Appellate Record

Drafting the Appellate Brief: Rule 28

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Writing the Brief: Step-by-Step

A. The Jurisdictional Statement

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A typical jurisdictional statement will look like this:

B. The Issue Statement(s)

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For example: Defendant’s motion to suppress was properly denied.

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Another possible revision:

During the execution of a search warrant at defendant’s home, investigators presented

A few things to note about issue statements:

 None of these alternative issue statements include citations to statutes, regulations or

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Appellant’s Issue Statements:

Appellee’s Issue Statement responding to appellant’s three issues:

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C. Statement of the Facts

(1) Bright-Line Rules

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(2) Structure & Strategy

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 A. Encouraging Long-Term Development of Low-Income Housing Options.

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(3) Other Organizational Devices & Graphics

In addition to sub-headings, another useful device – particularly in more complicated cases – is a

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Examples of other graphics used in appellate briefs may be found here:

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The Speedy Trial Clock Applied:

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(4) Style Pointers

D. Summary of the Argument

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 Example – Strong Facts:

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 Example – Strong Law:

E The Argument Section