The number of appeals in Indiana is small compared to the overwhelming number of cases tried in Indiana’s trial courts each year. Correspondingly, there are only a few more than twenty appellate judges and senior judges who decide appellate cases. There are few attorneys who handle appears on a regular basis.
On occasion, the small appellate bench and bar get to interact at professional events. At a recent gathering, the appellate judges provided wisdom about four key mistakes that they see with appellate briefing you should avoid in your brief (or insisting your attorney place in your brief). These are gems of wisdom to help you and your counsel make the most of your appellate brief.
First, most trial court judges issue careful, well-written rulings. For this reason, a litigant is wise to avoid petty, trivial, or hyper-technical arguments to raise numerous issues. A good rule of thumb is a strong brief will have no more than three issues. With close analysis, it may be that there are subparts to the issue that have to be analyzed, but “throwing it all to the wall to see what might stick” is an unsound appellate strategy.
Second, the statement of the issues should be a smooth harmonization of the law and why an issue arises under the facts of the case. An issue that drags on for several lines or is divided by semicolons is generally not a strong and succinct statement of the issue on appeal. This brings to mind the old adage, “the best writing is re-writing”. A good brief will go through multiple revisions to make it sharp and to the point.
Third, and perhaps hardest for attorneys and litigants, is limiting word content. Anecdotally, the most powerful briefs are sometimes the shortest and best written. The fact that the appellate rules allow the appellant’s brief to be thirty (30) pages or up to 14,000 words does not mean it should be that long or wordy. Stating, restating, and summarizing the same argument is a way to inadvertently confuse the issue and not be respectful of the Court’s time, given the massive amount of reading its judges must undertake each year.
Finally, the statement of the facts should have the facts relevant to the issues. There is a human tendency to want to “stick it to the other side” by errant facts, but even if true, if they are not objectively stated or relevant to the issues on appeal, it weakens the brief. The appellant or appellee just comes off as rigid and unwilling to accept the decision of a neutral fact-finder by disparaging the other party. Avoid it.
We hope this blog post helps you understand a little about what goes into good brief writing. Appeals are a matter of right and an important check and balance on powers in the judiciary. Thus, they should be taken mindfully of this wisdom and the Indiana Rules of Appellate Procedure. Dixon & Moseley, P.C. attorneys handle appeals from all final judgments of Indiana trial courts, appeals to the Indiana Supreme Court, Seventh Circuit Court of Appeals, and United States Supreme Court. This blog post is written for general informational purposes and is not intended as legal advice. It is an advertisement.
