Today’s main feature explores the role and structure of a well-written appellate brief based on Bryan Garner’s Redbook.
I. Understanding the Role of the Appellate Brief
An appellate brief is the primary written document submitted by counsel to an appellate court to advocate for a client’s position after a lower court’s decision. Its main purpose is to persuade appellate judges of the correctness of the client’s arguments and the errors in the opposing party’s case.
Central Role in the Appellate Process
- Written Advocacy Is Paramount: Unlike trial courts, where facts are presented and witnesses are examined, appellate courts almost exclusively review legal issues—how the law was applied, not what actually happened. As a result, the written brief is often the most influential document in the case.
- Tone: Provide a calm tone that fully states, but does not overstate, your position.
- Reliability: You must come off as reliable, which means favorably, but accurately, stating the facts, law, and argument.
- Defines the Issues: The brief sets out the precise legal questions for review. Judges rely heavily on the parties’ articulation of issues as they analyze the record and precedent.
- Limits the Scope of Appeal: Typically, only arguments included in the brief will be considered. Omitting an issue can mean forfeiting it.
Functions of a Well-Written Appellate Brief
- Educates the Court: Judges often encounter briefs in unfamiliar subject areas. A strong brief provides necessary legal context and guides their understanding.
- Persuades with Authority: Through logical reasoning, precise facts, and clear references to statutes and precedent, an appellate brief seeks to convince judges that the lower court erred—or, if appellee, that it did not.
- Frames the Narrative: The brief’s structure allows counsel to craft a compelling narrative, subtly highlighting strengths and addressing weaknesses.
- Serves as a Reference: Judges and their clerks often return to well-organized briefs when drafting opinions or preparing for oral argument.
Why the Appellate Brief Matters More Than Oral Argument
- Primary Vehicle for Arguments: Many appeals are decided on the briefs alone, without any oral argument.
- Lasting Impact: The brief remains available to the judges throughout their deliberations and is often more influential than the short oral presentations.
- First Impression: The opening brief sets the tone for the case and may establish key themes that define the entire appeal.
Key Takeaways
- Clarity, accuracy, and professionalism are essential—the brief is your client’s primary voice before the appellate court.
- Thoughtful organization, compelling argumentation, and close adherence to rules and conventions can make the difference between prevailing and falling short.
II. Preparing to Write: Foundations and Planning
Thorough groundwork is essential before drafting any appellate brief. The Redbook emphasizes that careful planning, deep understanding of the case, and mastery of both form and substance are prerequisites for effective appellate advocacy. This section sets out the essential steps:
Master the Record and Law
- Study the Record Meticulously: Before writing, review the entire trial record—including transcripts, exhibits, and court rulings. Identify exactly what happened below, focusing on the facts and procedures most relevant to your appeal.
- Know the Relevant Law: Research statutes, precedents, and rules that bear directly on your appeal. Identify what legal standards apply and what authority governs the issues in question.
Identify and Refine Your Appellate Issues
- Select Only Strong, Focused Issues: Avoid a scattershot approach. Pinpoint the few key errors most likely to merit reversal or modification. The Redbook cautions that overwhelming the court with weak or marginal arguments dilutes the impact of your strongest points.
- Frame the Issues Persuasively: State appellate questions as sharply focused, answerable questions—ideally crafted so that a “yes” answer aligns with your client’s position.
Understand—and Obey—the Court’s Rules
- Study the Rules of Appellate Procedure: Every appellate court has strict rules on format, length, timing, and content. Failing to comply can result in rejection or diminished credibility.
- Check Local Practices: Many courts also have local administrative or formatting requirements in addition to the general appellate rules.
Plan Document Structure and Design
- Map Out Your Organization: Use a detailed outline as your roadmap, organizing around the required sections (e.g., Table of Contents, Statement of Issues, Statement of the Case, Argument, Conclusion).
- Document Design Matters: Pay attention to headings, spacing, and use of italics/bold. A visually clean brief is easier to navigate and more professional.
Gather and Organize Supporting Authorities
- Collect Key Cases and Statutes: Group sources by legal issue, noting both the leading authorities and any significant adverse authority that must be distinguished.
- Prepare Pinpoint Citations: Judges value precise references; be ready to cite to the record and relevant authorities for every major point.
Draft with Style and Precision
- Favor Clarity Over Legalese: Garner advocates plain, straightforward language; avoid jargon and unnecessary complexity in both planning and execution.
- Anticipate Counterarguments: Note likely challenges by opposing counsel and decide where and how to address them, either within the main argument or a separate section.
Edit and Proofread Rigorously
- Review for Substance and Form: Careful editing ensures you avoid typographical and organizational errors, meet all technical requirements, and maintain clear logic throughout.
- Solicit Feedback: When possible, obtain input from colleagues. A fresh reader is more likely to spot confusing sections or overlooked weaknesses.
III. Structure of an Effective Appellate Brief
Cover Page and Table of Contents
- Cover Page: Presents the essential case caption and complies with court requirements.
- Table of Contents: Offers a clear roadmap, guiding the judges quickly to each section and helping them navigate the argument’s structure.
Table of Authorities
- Lists every cited case, statute, and rule.
- Provides pinpoint references so judges can quickly locate and verify authorities.
- Well-organized tables demonstrate professionalism and make the brief easier to use.
Introduction/Summary of the Argument
- Purpose: Captures the main themes and, ideally, the winning narrative of the case in one or two compelling paragraphs.
- Explains, in clear and direct terms, why the client should prevail, foreshadowing the argument’s logic and strengths.
- The Introduction is prime real estate—judges may rely heavily on it to understand the stakes and direction.
Statement of the Issues
- The Statement of the Issues tells the court exactly what legal questions are before it, defining the scope of review.
- Keep it short but focused: The issues statements should be less than 75 words, present the core law, facts, and the question to be answered. They generally start with a concise statement of the controlling law before moving into the who, what, when, and where. Finally, they conclude with a short question.
- Judges rely heavily on this section to understand the appeal’s central disputes; issues not raised here are often forfeited.
- Effective issue statements frame your theory of the case and guide the reader through your argument.
- Each issue appears on its own, avoiding excessive legalese or ambiguity.
- Tailor the issue to the applicable appellate standard.
- Garner emphasizes phrasing that compels a favorable answer for the writer’s client and prioritizes the most important issues first.
Statement of the Case and Facts
- Presents a neutral, chronologically clear narrative of what occurred below.
- Facts are carefully selected and arranged for objectivity but designed to subtly support the brief’s ultimate theme.
- Every relevant fact is accompanied by a citation to the record; omitting citations undermines credibility.
Argument
- Organization: Begins with the strongest point and proceeds logically—whether by importance or chronology.
- Headings: Use informative, well-crafted headings and subheadings to “preview” your points.
- Legal Reasoning: Each argument follows a sequence (e.g., IRAC or CREAC), directly tying the law to the facts.
- Cites all key authorities, not merely quoting but explaining each’s bearing on your position.
- Addresses and refutes counterarguments directly.
- Use of plain language and logical development is essential.
Conclusion
- Concise, direct statement of the relief sought.
- Summarizes why, in legal and equitable terms, the court should rule in your client’s favor.
- End on a powerful, memorable note.
Other Required Items
- Certificates of Compliance, Service, or Other Judicial Requirements: Varies by jurisdiction; must be meticulously followed.
- Appendices or Attachments: As required for supporting materials, record excerpts, or statutes.
IV. Style and Clarity: The Redbook’s Core Principles
- Use straightforward language: Avoid “legalese” or unnecessarily complex words that obscure meaning. The Redbook highlights replacing “stuffy” or convoluted terms with plain equivalents to make writing accessible and engaging.
- Use active voice and forceful verbs to create concise sentences.
- Be concise: avoid needless repetition and verbosity.
- Mind punctuation, grammar, and capitalization. Correct grammar is critical not only for comprehension but also to maintain credibility before courts.
- Consistent formatting—such as distinct fonts or styles for headings, body text, quotations, and footnotes—improves navigation and professional appearance.
- Effective briefs use headings and subheadings judiciously, guiding readers through arguments clearly.
- Edit and proofread for clarity, cohesion, and impact.
V. Common Pitfalls to Avoid
Misstating or Exaggerating Facts:
- Precision matters: Appellate briefs must accurately represent the record below. Exaggerating or misstating facts damages credibility and alienates judges who can spot inconsistencies.
Misquoting or Misciting Legal Authority
- Courts thoroughly scrutinize citations; incorrectly citing or overstating the holding of a case severely weakens your brief.
- Use primary and relevant secondary sources where appropriate to strengthen legal analysis
Failing to Address or Applying the Wrong Standard of Review
- A good brief explains the applicable standard for each issue and tailors the argument accordingly, showing why relief should be granted under that framework.
Overloading the Brief with Too Many Issues or Arguments
- Appellate advocates should prioritize and focus on a few strong, dispositive issues rather than raising every conceivable argument.
Poor Organization and Lack of Clarity
Neglecting Local Court Rules and Formatting Requirements
Neglecting to Edit and Proofread Thoroughly
VI. Final Review and Editing
The final review and editing stage is critical to transforming a drafted appellate brief into a polished, persuasive legal document. According to The Redbook and expert legal writing advice, meticulous editing ensures clarity, accuracy, and professional polish that can significantly influence how judges receive and evaluate your arguments.
Embrace a Multi-Stage Editing Process
Confirm Clarity and Persuasiveness
- Revisit the Issue Statements and Argument Summaries: Make sure your issues are sharply framed, and your summaries strike the right balance between factual support and persuasion without being conclusory.
- Check Logical Flow and Structure: Ensure that arguments progress logically, each point is clearly stated, and transitions guide the reader smoothly through your reasoning.
Verify Accuracy
- Fact-Check with the Record: Double-check that all factual assertions are supported by correct citations to the appellate record.
- Validate Legal Citations: Ensure all cases, statutes, and rules cited are accurate, up-to-date, and properly formatted per the relevant court rules and The Bluebook or local citation standards.
- Quote Verification: Confirm that all quoted material is exact and cited to the correct page or record location.
Conform to Court Rules and Formatting
Conduct a Line-by-Line Proofreading
Respect the Court’s Time and Attention
The final review and editing phase is more than correcting grammatical errors—it is a strategic step to enhance clarity, reinforce logical structure, ensure precision, and comply fully with court rules. By thoroughly editing from multiple vantage points, rigorously proofing, validating citations, and employing objective feedback, you elevate your appellate brief from a rough draft to a compelling, authoritative document that maximizes your client’s chance of success.
Notable LinkedIn Posts and Comments
- Nick Bullard on the most overused email phrase.
- Chris Schandevel on defining obvious terms in briefs.
- Ryan McCarl on thinking of legal citations as a network.
- Ross Guberman on “nor” vs. “or.”
July’s Cool (and Not Necessarily New) Tech Tool and Recommendation
Table Capture
Table Capture is a Chrome extension that lets you easily extract tables, even those generated by AI chatbots or tools that use unconventional layouts like dynamic HTML. It accurately detects and copies these non-standard AI-generated tables, preserving their structure for seamless pasting into Excel, Google Sheets, or other spreadsheet editors. The extension’s “Workshop” mode enables manual selection of tabular regions missed by conventional detection, ensuring AI outputs can be copied cleanly. Additionally, its cloud features support AI-powered analysis of your captured tables using ChatGPT, Perplexity, or other AI tools—offering deeper insights directly from the extension.
Podcast/Media of the Month
076. How Scrum Lessons Can Improve Your Law Practice: Kanban for Lawyers Part 2, The Agile Attorney Podcast
In the early 2000s, software teams moved away from rigid project plans to focus on delivering the most valuable work in short, two-week cycles. This shift led to Scrum—a framework centered on time-limited sprints, diverse teams, and rapid feedback. While born in software, Scrum’s approaches to prioritization, workflow, and managing limited capacity work just as well in legal practice, helping teams work smarter rather than harder.
077. The BEST System for Managing Legal Work: Kanban for Lawyers Part 3, The Agile Attorney Podcast
Legal teams uniquely balance dozens of active matters while handling constant interruptions from clients, courts, and opposing counsel. Each case brings unpredictable changes that can disrupt even the best plans. This episode explains why Kanban is the ideal system for legal work. Kanban helps teams reduce overwhelm, identify bottlenecks, and manage tasks with more intention. If your team feels stuck reacting to chaos, discover how Kanban offers a practical way to regain control.
Law Journal Articles
“Distinguishing Predictive and Generative AI in Regulation”
(Wang, Jennifer and Selbst, Andrew D. and Venkatasubramanian, Suresh and Barocas, Solon, Distinguishing Predictive and Generative AI in Regulation (June 16, 2025). UCLA School of Law, Public Law Research Paper No. 25-26, Available at SSRN: https://ssrn.com/abstract=5328780 or http://dx.doi.org/10.2139/ssrn.5328780)
Over the last decade, regulatory tools were developed for AI based on predictive AI assumptions. Generative AI challenges these assumptions due to its adaptability, evaluation difficulties, new legal issues, and complex value chain. Policymakers must reassess past policies and introduce new ones to address these unique risks, with three recommendations for better regulation.
“Evaluating Ai in Legal Operations: A Comparative Analysis of Accuracy, Completeness, and Hallucinations in Chatgpt-4, Copilot, Deepseek, Lexis+ Ai, and Llama 3”
(Munir, Bakht, Evaluating Ai in Legal Operations: A Comparative Analysis of Accuracy, Completeness, and Hallucinations in Chatgpt-4, Copilot, Deepseek, Lexis+ Ai, and Llama 3 (June 30, 2025). International Journal of Legal Information, Available at SSRN: https://ssrn.com/abstract=5331771 or http://dx.doi.org/10.2139/ssrn.5331771)
Artificial Intelligence (AI) is rapidly changing legal practice, but its adoption still faces key hurdles, including privacy, bias, and the risk of inaccurate outputs. This study compares five AI tools—ChatGPT-4, Copilot, DeepSeek, Lexis+ AI, and Llama 3—and finds Lexis+ AI to be the strongest performer. However, all tools still experience hallucinations, even with the use of Retrieval-Augmented Generation (RAG), which is just one factor influencing results. The research also examines RAG’s complexities and provides solutions for better AI tool performance.
“Machine Unlearning Doesn’t Do What You Think: Lessons for Generative AI Policy, Research, and Practice”
(Machine Unlearning Doesn’t Do What You Think: Lessons for Generative AI Policy, Research, and Practice (December 01, 2024). Yale Law & Economics Research Paper, Stanford Public Law Working Paper, WVU College of Law Research Paper No. 2025-004, Available at SSRN: https://ssrn.com/abstract=5060253 or http://dx.doi.org/10.2139/ssrn.5060253)
There are key gaps between what current machine unlearning methods for generative AI can achieve and the broader legal and policy goals they’re expected to support. While unlearning is suggested for removing specific data (like personal details or copyrighted content) and blocking certain model outputs, both aims encounter significant technical and practical issues. The article provides a framework to clarify why unlearning is not a universal solution for addressing generative AI’s societal risks, promoting clearer collaboration between ML, law, and policy experts.
