1. Know Your Court’s Rules for Appellate Briefs

First things first. Know the rules of your appellate court pertaining to the organization of the brief, the method of citation, and the format of headings. Don’t exceed the page limit unless you obtain permission first. Stick to the rules or you may lose credibility with the court and their clerks, which can damage even the best argument.

2. Know the Statute(s) Your Client was Charged with Violating

While this may seem like an obvious point, make a list of the charges against the defendant and a checklist for the elements of each one. When you review the record as described below, check the boxes next to the elements to be sure the state produced evidence on every one of them, including any enhancements.

3. Review the Record and Transcript of the Trial

Long before you write the first word of the brief, you must do some leg work to prepare. This includes reviewing the record and transcript of the trial thoroughly, from the information or indictment to the sentence. Take copious notes at this point of what happened at the trial. You can organize and edit these notes later.

You are looking for the story of the case and for errors that occurred during the trial. Sometimes, it can be helpful to keep these two categories of notes separate while you are taking them. The witnesses’ testimony and the evidence introduced will be the basis of the story you create later. The errors will provide your legal argument. Flag each error during this pass-through. Whether it is a denial of a pretrial motion, the court overruling an objection to the testimony of a witness, or improper jury instructions, note it. You can always strike out errors that do not prejudice the client later.

Don’t forget the big-picture errors, such as constitutional violations, ineffective assistance of counsel, and prosecutorial misconduct. If the misconduct was egregious or a sufficient number of instances of misconduct or ineffective assistance occurred, you will want to include that in your legal argument.

While taking notes, keep an eye out for prejudice. If the trial attorney objected to the presentation of evidence or testimony and that evidence or testimony was damaging to the defense to the point that your client was denied a fair trial or that the outcome of the trial was affected by it, flag it. Prejudicial errors are what win appeals.

4. Write Your Statement of Facts and an Outline of Your Best Arguments

After taking notes from the record, organize them to create a statement of the facts of the case.

  • The best approach is to write a chronological description of the underlying facts of the case. Include the circumstances of the crime, the charges against the defendant, and then the trial.
  • Create a narrative; do not recite all the facts of the entire crime or the trial. Use only what is necessary for your argument. Make it a story, not a boring recitation. A witness-by-witness statement of the trial was a mistake. Weave the witness statements into the narrative, organizing them to put your defense in the best light.
  • Once your statement of facts is written, identify and outline the best legal arguments you have for overturning the judgment.
  • Know the elements of the crime your client is claimed to have violated and keep them in mind as you outline your argument.
  • Identify the best arguments for error and prejudice. Some will jump out at you, but others may be more subtle. Look at your statement of facts to see where the most damaging testimony or evidence came from and see whether any errors affected the admission of that testimony or evidence.
  • Research applicable law. Find cases in your favor and those against you. Be able to apply and distinguish. Although higher-court decisions are best to cite, also look at unpublished cases by the court deciding your case to see if they have decided the issue before. That way, you can either use a similar argument or identify a tactic you should abandon.
  • Find successful/unsuccessful briefs relating to your issue and use those to frame your own brief. Use successful appellate briefs as a template — don’t reinvent the wheel.
  • Outline your best argument(s) and create a theme. A theme statement consists of a few sentences identifying the main points of your argument(s). It should be a short and clear summary of what the main argument(s) will be. Find the crux of each argument and decide the order in which you will present them in the brief.

5. Opening Statement/Summary of Case

Many courts require an opening statement or summary of the case at the beginning of an appellate brief. Make yours a clear, concise, and affirmative statement of what the case is about. Use your theme and outline to help craft this part. Usually, the Statement of the Case should be no longer than a page, perhaps two. As indicated above, you should look at successful appellate briefs to see how other attorneys crafted their summary of the case.

The opening statement or summary of the case should include:

  • The charges that were alleged in the information or indictment, including any enhancement allegations, with citations to the relevant code sections. Keep this section short and easily understandable and summarize wherever you can. If a large number of charges were filed against the defendant, a chart of the charges and enhancements or special circumstances would be helpful. If the indictment or information was amended, indicate the offenses with which the defendant was charged by the original information or indictment and then indicate the charges on which he or she was tried. Don’t detail all the amendments unless there is a good reason for doing so.
  • A chronological summary of the facts of the crime charged. Do not exclude facts that look bad for your client; instead, downplay them and emphasize only those facts that relate to the charge.
  • If an error in the procedure for charging the defendant occurred, include a description of the procedure(s). Otherwise, summarize the procedure as much as you can.

6. Content of Brief: Statement of Facts

Every appellate brief requires a statement of the facts of the case. Look back on the statement of facts that you wrote just after reading the summary. Now that you have the legal issues outlined, trim the factual statements to include only those facts necessary for the determination of the issues in your case. This is not to say that you should omit facts that are against your client’s interest. If you do, you risk losing credibility with the court, and the court may use the state’s statement of facts to inform itself of what happened. Rather, do what you can to mitigate the negative information.

Some tips on drafting the statement of facts are as follows:

  • Do not include lengthy verbatim quotes from the record in your statement unless the exact testimony of a witness is necessary to the legal argument you will make later. Instead, accurately summarize the statements of witnesses and the introduction of evidence. If a witness’s testimony is not relevant to the issues on appeal, you can exclude this testimony from the statement of facts. Remember, your statement of facts is not a witness-by-witness summary. It is a narrative. Not all testimony will be relevant to your narrative. Skip the irrelevant testimony, but include relevant testimony even if it is not good for your case.
  • Make certain to cite to the record after every sentence in your statement of facts rather than having a single, multi-page citation at the end of a paragraph. This way, it is easier for the judges to find the information you have recited. Use the notes you created after first reviewing the record to find support for the facts in the statement.
  • In your statement of facts, humanize your client as much as possible. Refer to the client as “Mr. X” or “Ms. X.” If your client’s crime was particularly heinous or if your client’s behavior in the courtroom was aggressive or inappropriate, break up the information so you don’t dwell at length on the bad facts. State the crime committed, for example, but break up the description of what happened. You can minimize the shock value of the facts but still have a full summary.
  • If your defense is that someone else committed the offense, refer to the crime using indefinite terms: “the robber,” “the intruder,” or “the attacker.” Do not say “The defendant allegedly [committed an act on which the charge was based].” Distance your client from the perpetrator.
  • Don’t exaggerate or embellish the facts or give editorial comments on them. Be accurate while minimizing the bad facts.
  • Never use police terms or jargon in telling the story of the crime. The story should be more like a novel than a list of charges.
  • Unless a sentencing error will be addressed on the merits in the brief, skip lengthy discussions of sentencing to avoid alerting the state to some sentencing infirmity. Simply summarize the sentence imposed.

7. Content of the Brief: Arguments of Law

After the Statement of Facts comes the Arguments of Law in your brief. Here is where you must be at your most persuasive—not argumentative, but persuasive.

To start, give a one-sentence statement of your best argument(s). Make it memorable and easy to understand so the judges will keep it in their minds while they read through the remainder of your arguments. Use keywords that you can refer to during your argument.

Before you get into the meat of your argument, articulate the standard of review. Do not simply say, “The standard of review is …” The court knows the standards of review and might not even read the sentence. Say instead, “In a case such as this one, where the defendant claims that the court erred in [some way], this court must [reference the standard] in reviewing the evidence.” Do not string cite it or, again, the judges’ eyes will simply gloss over it. Whenever possible, cite one or two cases in which a court overturned a conviction using that standard. Emphasize the part of the standard that is favorable to your case.

Some other important factors in your Arguments of Law include the following:

  • As stated earlier, you must know the exact language and elements of the crime with which your client is charged. Be prepared to show how an error in the trial court affected the proof of one of these elements and affected the outcome. Use it to pick apart the state’s case.
  • Write your argument concerning the error you identified in the proceeding below with prejudice in mind. Prejudice is what gets decisions overturned. While it might seem obvious in some cases, a subtle nudge may be necessary to demonstrate why the lower court’s error was prejudicial. If the court let in evidence that it should not have, for example, stated, “If the evidence had not been admitted, the state would have had insufficient evidence of ________ [some element of the crime] to convict the defendant, and its admission, therefore, prejudiced the defendant.”
  • As you flesh out your legal argument, focus on your strongest points. Raising weak points wastes your time, detracts from the strong ones, and irritates judges. Unless you are raising the point simply to keep from waiving it, keep your writing and the judge’s minds on your strong points.
  • Many appellate judges are desensitized to arguments they see all the time and may summarily dismiss an argument that sounds like one they’ve heard before. Use creative phrasing to turn your issue into one they will analyze on its merits, not one exactly like those they’ve rejected dozens of times. As with the Statement of Facts, your argument should relay more than a dry recitation of the applicable law. Use active and engaging writing to grab and hold the judges’ interests. Make your issue seem different from what they’ve seen before.
  • In the body of the legal argument, make liberal use of descriptive headings and subheadings. These should emphasize your strong points. Do not lump several arguments together under one heading; instead, let the headings and subheadings tell a story that will lead the court to find your argument persuasive.
  • As to the state’s case, anticipate the state’s arguments and debunk them, but don’t waste excessive space on the state’s points. The opening brief is your chance to argue your story, not the state’s. You can best undermine the state’s arguments after the responsive brief, when you know exactly what the state’s points are going to be.

Finally, finish strong. Tell the court exactly what you want it to do and why. Don’t use boilerplate language like, “The judgment should be overturned.” Instead, in a few sentences, provide the strongest factual and legal bases for granting the relief you seek. Tell how legal errors hurt the defendant and what you want the court to do. Be specific. Make sure your conclusion mirrors your introduction, and leave the court with a memorable impression of your argument.

8. Final Thoughts

After you have written your stellar brief, have someone else read it before submitting it. Get an opinion on whether your arguments make sense and are persuasive. Have the reviewer point out any obvious logical infirmities in your case or issues you might have missed.

Criminal appellate attorneys do not have the luxury of unlimited time and resources to write their briefs. The most important takeaways from the advice above are:

  • Know the rules of your appellate court, the statute under which your client was convicted, and the standard of review.
  • Read the record carefully and take notes on prejudicial errors.
  • Create a compelling narrative of what happened from the time of the crime to the judgment. Organize the narrative chronologically.
  • Make an outline of your main argument(s).
  • Pare down the statement of facts, using only what is necessary for your argument.
  • Keep your focus on prejudice. This is how you get a judgment overturned.
  • Concentrate your argument on your strongest legal points. Don’t waste time on errors that are not prejudicial.
  • End strong and tell the court in a few simple sentences what it should and why.

When working with our clients, we put great care and consideration into the appellate briefs we prepare. Following the proven strategy listed above, our Spolin Law team has successfully argued countless appeals, helping achieve rightful justice for the people we serve. To see how we may be able to help you, don’t hesitate to contact us for a free consultation.