© By William Lazarus
1. Consider whether the appeal makes sense. Why are you likely to beat the odds that the trial court will be affirmed? Do you have an issue particularly worthy of challenge? If so, is your case a good vehicle for raising that issue? If you’ve won below, what are the weak points in your position? Should you consider settling? Brainstorm these questions with someone who has an independent perspective.
2. Narrow the issues you take up on appeal. A scattershot approach imparts a message: you don’t have a weighty issue, so you throw in the kitchen sink. Worse, arguing the implausible will detract from your good arguments. Your goal is to win, not to make the most points. To do that
, you need to build your credibility. Senseless argument, and an unfocused approach undermine credibility. If you start off weak, a busy judge may quickly decide you have little merit to all of your argument. If you finish weak, your strong points may get lost in the mix. Go with your strengths.
3. Build the record right while litigating the case in the trial court. File exhibits with a title page complete with a case caption and identification of the underlying pleading, and make sure that page is file stamped, so that the exhibits become part of the common law record. Know that record, and prepare your appendix early. Having the documents together will help you organize your thoughts and size up key points of your argument and will reduce the time you spend finding and putting in citations to the record.
4. Quickly sketch out a rough draft, getting your thoughts down. Then write, rewrite and rewrite. Focus, organize, cut repetition.
5. Use an introduction to set out the heart of your argument. Consider placing points up high that will be raised in substantial detail later in the brief. Give the judges a roadmap to what’s coming.
6. Consider adopting your opponent’s organization, point by point. This will make it easier for the judges to follow your brief. Also consider the downsides. It may, for instance, not make sense to start off on your weak foot. But look again. Sometimes your opponent’s ostensible strengths turn out to be his weaknesses. Find the weak chink and the armor can be penetrated. And what appears to be a weak point for you often turns out to have a hidden strength. Your opponent is likely to play his strong arguments first. If you can deflect your opponent’s key argument at the outset, you will quickly establish credibility, and will be in an excellent position to proceed with your strong points.
7. Address the standard of review for each of your arguments. Don’t fudge, but do think about alternative perspectives. If you are the appellant, consider whether a way exists to turn deferential review into de novo review. For instance, review of the grant of summary judgment is usually deferential. But perhaps the summary judgment turned on the interpretation of a statute. You can argue that statutory interpretation calls for de novo review.
8. Set forth the facts dispassionately. Show, don’t tell. Let the facts speak for themselves. Juxtapose facts that raise doubts about your opponent’s credibility. Don’t say, “Appellant falsely claims it was pitch dark when he ran over the pedestrian.” Say: “While Appellant asserts it was pitch dark outside when he struck the pedestrian at midnight, National Weather Service data confirm the recollection of bystander John Campbell that the night was clear, and the moon full.”
9. Watch the words. Strike clearly from your vocabulary. Remember, it signals the opposite. Cut conclusory and weighted adverbs, like amazingly, incredibly, outrageously, etc. They undermine credibility. Watch for the passive tense. “There are” few reasons to ever use that phrase. Employ strong verbs. Avoid absolutes. Pare down verbiage, and clutter. Consider citing only to the Illinois official reporter, as allowed by Supreme Court Rule 6.
10. Forgo personal attacks. Be an advocate, but be fair. That’s more likely to win the hearts and minds of your readers on the bench.