Brief Writing Tips From Judicial Guests of The Portia Project Podcast

As creator and host of the award-winning Portia Project podcast, which chronicles the storied careers of women judges, lawyers, and leaders from throughout the United States, I have interviewed nearly 100 judges about their careers—and about what kind of advocacy they find effective and helpful in their decisionmaking process. 

Compiled here are seven tips for brief writing gathered from those podcast interviews. While most of these tips are from appellate justices, they apply equally to effective advocacy in the trial court as well.

Know your audience. 

This means recognizing which court you are in, and what power and role that court has. A trial court will view an issue differently than an appellate court, and a supreme court (which has policymaking authority and the power to overrule case law) will see its role differently than an intermediate appellate court. 

Elizabeth Walker, Chief Justice of West Virginia’s highest court, advises adjusting your presentation for the court you are in. “I always encourage lawyers to write to their audience. … Writing to an appellate judge is different” than writing to a trial judge. On appeal, she says, it is helpful to engage in careful issue selection. “Some of the best appellate advocates pick and choose [which legal arguments to raise] not just in the oral argument but also in the brief,” she said. 

Retired California Court of Appeal Justice Margaret Grignon describes another reason for carefully selecting issues on appeal: “You want to keep your justices [on the legal path to victory you have proposed]. That’s why it’s important for your brief to be organized with no extraneous issues … that might allow them to go off the path.” 

Tell a story. 

“It’s important, especially in appellate writing, to tell a story,” says Michigan Supreme Court Justice Megan Cavanagh. She explains: “That’s not always the factual story necessarily. Depending upon your issue, it may be the procedural story. It may be how we got here or what the process was so that [the court] can see what process was lacking. Whatever your issue, you have to figure out what the story is that you need to tell for the legal issues that you are raising or the relief that you’re seeking.”  

Make the judge want to rule in your client’s favor. And then provide the legal analysis that will allow the judge to do so.

Former California Court of Appeal Justice Grignon boils a persuasive brief down to two things: “First of all, you have to make the justices want to rule in your favor. I call that winning the hearts and minds of the justices. You need to present your case in a way that makes them think that your side should win. … Two, … give them a legal path that they will feel comfortable with that they can get to the result that you want them to get to.”

Treat the table of contents as the first opportunity to tell your story. 

The story begins with the table of contents. Many judges on the podcast mentioned that they read the table of contents of each brief first, before diving into the substance of the briefs. The headings in the table of contents should lay out the contours of your story, and provide signposts for the judicial reader so she can drop into the appropriate section she may be most interested in during a first reading of the brief. 

California Court of Appeal Justice Adrienne Grover puts it this way: “When crafting the headings, if you do it with an eye toward stringing them together so that [the court] can look at a one- or two-page table of contents and get the idea of the case, it’s helpful for me and any other justice … [to get] the first taste of what the case is about.” Second District, Division Three Presiding Justice Lee Smalley Edmon, too, says that she often starts “with the table of contents to figure out what [a] case is going to be about, and … if it can tell a story [that] is very helpful.”

Be accurate. 

Accuracy in both record and case law citations is essential. California Court of Appeal Justice Judith Ashmann-Gerst says a brief must be accurate. “[W]e look at every citation in a brief, every single one, whether it’s to the record or a case,” she said. Being straightforward in your citations also builds credibility. As former appellate lawyer, now Ohio appellate Judge Christine Mayle, explains: “When I go and read a case, and I see that it’s not what [the brief] has led me to believe, that’s not good. … The biggest thing that I would ask would be to be completely honest with the facts and law.” 

Clarity and brevity are key. 

Conciseness matters to both trial and appellate judges. Justice Edmon says “being brief in your brief writing is always a good idea,” and it has the added benefit of requiring you “to focus your arguments.” U.S. District Judge Lee Rosenthal of the Southern District of Texas agrees: “The most important thing to do first as a lawyer is write clear, short declarative sentences, no passive voice, no $15 words where a nickel word will do,” she says. “Be above all clear. Get to the point for judges with busy dockets who are triaging every day.” This applies to supreme courts too. As Arizona Supreme Court Vice Chief Justice Ann Scott Timmer notes: “be concise because we have so much to read. The quicker you can make your point clearly, the better.”

Ask for what you want. And be clear about what that is.

If you are the appellant, you want the court to reverse. But how do you want the court to do that? As the former Chief Justice of the Utah Supreme Court Christine Durham put it: “[A]lot of people get engaged in the theory or the factual background of their case [and] they forget to narrow it down and say, ‘Here’s what the court needs to do. Here’s how and why you can and should do it. And here’s why you should do it.’” 

Or, as Arkansas Supreme Court Justice Rhonda Wood explains: “The number one tip I have is to be more specific in the relief [you] want…. If I buy your argument, what exactly do you want the court to do? … Reverse and remand for a hearing? Reverse and remand with instructions to enter an order that says what?”

Asking for what you want, and doing so clearly, is important in the trial court too. Judge Michelle Williams Court, the supervising judge of the civil court in Los Angeles Superior Court, noted if you want her to rule in your favor on a motion, tell her what you would like the court to do (i.e., the remedy you want the court to order), and cite authority demonstrating that the court has the power to do what you are asking.

Ask for what you want—using some of the tips laid out here—and you may just be more likely to get it.

You can read the companion article, “5 Oral Argument Tips From Judicial Guests of The Portia Project Podcast,” by clicking here.

M.C. Sungaila is a partner at the Complex Appellate Litigation Group who has briefed or argued more than 175 appeals, and the creator and host of the award-winning Portia Project Podcast. More tips on brief writing can be found in a special podcast episode that will air this month.

This article originally appeared in AmLaw Litigation Daily on December 12, 2023.

This article is copyright © in the year of publication above and may not be reprinted without permission.

5 Oral Argument Tips From Judicial Guests of The Portia Project Podcast

As creator and host of the award-winning Portia Project© podcast, which chronicles the storied careers of women judges, lawyers, and leaders from throughout the United States, I have interviewed nearly 100 judges about their careers—and about what kind of advocacy they find effective and helpful in their decisionmaking process. 

Compiled here are five tips for oral argument gathered from those podcast interviews. While most of these tips are from appellate justices, they apply equally to effective advocacy in the trial court as well.

Be prepared. Both for your presentation and the court’s questions. 

Former California Court of Appeal Justice Margaret Grignon, now an appellate advocate herself, says she prepares “unendingly” for argument. Her goal is to have a conversation with the court. “I don’t want to talk to them or give them a speech. I want to see if I can get them to talk with me … about what their concerns are about the case,” she said. “It’s listening and trying to pay attention to what the justices indicate they are interested in and make sure that’s what you are talking about.”

Focus on the toughest issue you have. And present the arguments a bit differently than you did in your brief.

Ohio Court of Appeals Judge Christine Mayle advises: “Although it’s more comfortable to use your time to nail down … your best arguments, what we want to do during oral argument is to test our theories [and] drill down on [your] weakest points. What has your opponent brought out that makes it hard for you [to win]? Maybe it’s a Supreme Court case that you have to distinguish … or a section of [a] statute…. Use that time at oral argument to help us overcome whatever the biggest hurdle is for us to rule in your favor.” Tennessee Supreme Court Justice Holly Kirby says it this way: “Go straight at it and to your most important issue.” 

In an appellate argument, more so than in a trial court argument, it is important to consider the broader impact on the law that your case may have, and to make the court feel comfortable with that. As former Chief Justice of the Utah Supreme Court Christine Durham notes: “You’ve got to explore the impact of whatever principle you are being asked to articulate on sometimes generations of cases in the same [area of law]. That makes appellate work special, in the sense that you are solving problems … in the [larger] context very often as well as in the individual context.”

For this reason, it is helpful to “not repeat your briefs” and add some new insight, reasoning, or approach to the issues than what already appeared in your brief. As Grignon says: “[T]hey have read your briefs and they know what you have already told them. Unless you have some wonderful new insight that they haven’t heard before, the argument is not very interesting to them.”

Listen and respond to the court’s questions.

As former Chief Justice Durham acknowledges, “A lot of questions from the bench are directed to counsel but they are often meant to surface an issue that another colleague has or will have, and to give a lawyer a chance to address it.” Pay attention to the court’s questions, former Missouri Supreme Court Chief Justice Ann Covington advises: “Listen carefully to the court’s questions …. I have seen lawyers miss opportunities to take the bull by the horns and say ‘Here’s what you’re not understanding about what I am saying in my brief.’”

Indeed, according to Michigan Supreme Court Chief Justice Elizabeth Clement: “The best advocates I see are those who can get up and say, ‘What I hear you asking is this.’ Where you’re putting an emphasis, where you’re maybe struggling or want more information on this issue … they hone in on that.…” 

Listen to the arguments made by opposing counsel. And to the questions the court asks them.

As Tennessee Supreme Court Justice Holly Kirby notes: “At oral argument, you get not only the dynamic of the lawyer coming to you, having distilled the case down, you have the interaction with everyone else [on the panel] and how they’re reacting to what the lawyer’s saying or to what” other judges are saying, as well as what opposing counsel is arguing and how the members of the panel are responding to them. As the advocate, pay attention to this larger picture too.

Recognize where you are in the process and the role oral argument plays in the court’s decisionmaking process.

For the advocate, oral argument is the end of the appellate process—until the court issues its opinion in a case. But as D.C. Circuit Court of Appeals Judge Patricia Millett and Michigan Supreme Court Justice Megan Cavanagh observe, oral argument is not the end; it is midway through the court’s process of decisionmaking. As Cavanagh says: “It is a part of the beginning of formulating what the answer should be or how to resolve some of the questions you have ….It’s part of the process,” not the end of it. After argument, the panel may reach a tentative vote for the first time in a case, and then trade draft opinions and tinker with the opinions’ reasoning.

By maintaining a sense of the court’s perspective on oral argument, an advocate can be more helpful both to the court and her client. 

You can read the companion article, “Brief Writing Tips From Judicial Guests of The Portia Project Podcast,” by clicking here.

M.C. Sungaila is a partner at the Complex Appellate Litigation Group who has briefed or argued more than 175 appeals, and the creator and host of the award-winning Portia Project Podcast. More tips on oral argument can be found in a special podcast episode that will air this month.

This article originally appeared in AmLaw Litigation Daily on December 14, 2023.

This article is copyright © in the year of publication above and may not be reprinted without permission.