Utilize Experience

"Just a Brief-Writer"?By Nancy Winkelman

C onsider this: it is the trial of the most important casein your career, the case that you have been working onfor years, and the most important witness on the otherside has just fi nished her direct testimony. Her cross­examination is the moment you have been waiting for,the pivotal part of the trial, the make-or-break pointof the case. And so, of course, you hand it over to themost inexperienced lawyer on the team. Sound crazy?Of course it does. Yet this unfortunately fairly aptlydescribes what goes on in law firms across the countrywhen it comes to handling appeals.

In our federal appellate system, the appellate brief isthe functional equivalent of the cross-examination ofthe key witness. This is so not only because the major­ity ofappeals are decided without oral argument-over75 percent in some circuits- but also because, evenwhen there is oral argument, it is the brief that servesto convince the court that the caseis important enoughto warrant argument. And in the final analysis, judgesalmost uniformly agree that the briefs are more impor­tant to their decision-making process than are oralarguments.

However, all too often, lawyers without appellateexperience are given primary responsibility forwritingthe appellatebrief. Then, to compound the problem, themoreexperienced lawyers on thecaseoftengivethebriefrelatively short shrift. Why? Because experienced law­yerscount on making their mark during what theyviewas the sexier and more glamorous part of the appeal­presenting the oral argument, which in all likelihoodneverwilloccur, or ifit doesoccur,ultimatelywill makevery littledifference to theoutcomeofthecase. After all,those manyyears ofpractice,that carefully honed expe­rience, that success in the limelight was not to be "Justa Brief-Writer"! Yet, sincebriefs have now replaced oralargument as the main source of communication withthe appellate court, it is high time for lawyers to treatthem as the equivalent of the cross-examination ofthatkey witness.

• Nancy Winkelman is a partner with Schnader Harrison Segal & Lewis LLP inPhiladelphia where she is co-chair ofthe firm's Appellate Practice Group. She is amember of DRI'sAppellate Advocacy Committee and served as vicechair ofDRI 's2009 Appellate Advocacy Seminar. An extended version of this article was previ­ouslypublished in Litigation, theJoumalof the Section of LitigationoftheAmericanBar Association, Vol. 29, NO. 4 (Summer 2003) and The Litigation Manual, ThirdEdition, First Supplement, Chapter 64 (ABA 2007) .

64 • For TheDefense • November 2009

But don't takejust mywordforit. Listen to thejudges.Chief Justice William Rehnquist writes: "[Ilnside of ahundred years the written brief has largely taken theplacethat wasoncereserved fororal argument. Forthatreason, an ability to write clearly has become the mostimportant prerequisite for an American appellate law­yer." William H. Rehnquist, From Webster to Word­Processing: The Ascendance of the Appellate Brief, 1 J.Ar r. PRAC . & PROCESS 1, at 3,4 (1999). Justice Ruth BaderGinsburg concurs: "As between briefi ng and argument,there isa near-universalagreement amongfederal appel­late judges that the brief is more important-certainlyit is moreenduring." Ruth Bader Ginsburg, Remarks onAppellate Advocacy, 50 S.c. L. REV. 567, 567-68 (1999) .Judge Joel Dubina of the Eleventh Circuit emphasizesthat the appellate brief is the single most important fac­tor in the appellate process. Joel F. Dubina, How to Liti­gateSuccessfully in theUnited States Court ofAppealsfortheEleventh Circuit, 29 CUMBoL. R EV. 1,2 (1998/1999).And Third Circuit Judge Ruggero Aldisert opines thatoralargumentadds verylittle, estimatingthat" [n1inety­five percent ofappellatecases arewon or lost on the basisofwritten briefs." Ruggero J. Aldisert, TheAppellate Bar:Professional Responsibility and Processional Compe­tence-A Viewfrom the Jaundiced Eye of One AppellateJudge, 11 CAP. U.L. R EV. 445,456 (1982).

Clearly, regardless of whether oral argument is held,it is the brief that makes the all-important first-andlast-impression on the court. Justice Thurgood Mar­shall made the point precisely:

[I]t is the brief that does the final job, if for no otherreason than that the opinions are often written sev­eralweeks andsometimesmonthsafter theargument.The arguments,great as they may have been, are for­gotten. In theseclusionofhischambers,thejudgehasonly his briefs and his law books. At that time yourbrief is your onlyspokesman.

Thurgood Marshall, The Federal Appeal, in Counsel onAppeal139, 146 (Arthur A. Charpentier ed. 1968).

Against this background, one would think that, aswith thecross-examinationofthe key witness, the writ­ing of the briefwould be primarily in the hands of themost capable writer, the most experienced appellateadvocate, the person in the office or on the team mostversed in effective written appellate advocacy. Unfor­tunately, quite often the opposite is true. In fac t, brief-

Writers' Corner, continued on page 68

Writers' Corner, frompage64writingoftenis relegated to the mostjuniorlawyers in the office. That'swhatfirms hireassociates for, after all! With oral argu­ments becoming less and less significantand brief-writing becoming moreandmoreimportant to the outcome of appeals, itseemscounterintuitive that so manyexpe­riencedlawyers are content to relegate thebulk of brief writing to their colleagueswithoutappellate experience.

Taking the advice of appellate judgesacross the country, lawyers and their cli­entsshouldmakesurethatexperienced ap­pellate advocates areprimarilyresponsiblefor craftingappellate briefs. Theexperiencethat appellate lawyers bringtobriefwritingwill result in the mostpersuasive briefs­briefs that are focused, well organized,lively, and easy to read; that have a coher­ent theme; that present the facts in a waythat makesa courtwanttodecide acertain

way; and that present thelawin awaythat i

guidesthe court there. . i ,

To end where we began: no oneexpectsanyone other than the most experiencedtrial lawyer to cross-examine the keywit­ness in the key trial. Similarly, given howappeals are decided, weshouldexpect thatthe mostexperienced appellate lawyer willplaythe principal role in drafting the ap­pellate brief. NJ