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How to write a good appellant brief(三)

2016-03-07 11:12  來源:   糾錯

You can preserve your credibility for formulating the issues on appeal even-handedly; but there is another challenge: You must also make the questions comprehensible. If the judges cannot understand what the case is about from the initial substantive exposure to your writing — a statement they expect to be clear — they may have far less patience with the parts of your brief that may legitimately be complex.

A good brief writer can formulate clear, neutral-sounding questions but frame them in a way that tends (subtly, of course) to suggest the answer the writer seeks. The question should not present your argument, but it should express a clear point of view about the case.

An example from one of our recent cases may demonstrate the distinction. It was an antitrust case. Our opening brief (for the appellants) stated five issues presented and did so in less than half a page. We slightly loaded one of them with what we thought were helpful facts:

Whether defendant can be labeled a “monopolist” under Section 2 of the Sherman Act because it owned the only bowling center in a small area, even though uncontradicted evidence showed that defendant lacked power to exclude competition or control price.

Our adversaries took a different approach. They heavily loaded their issues presented and took five pages of their brief to state them. The first issue presented, according to our adversaries, was:

Was the finding of the jury that [defendant] possessed monopoly power in the Antelope Valley of California (“the relevant market”) supported by substantial evidence when there was evidence (a) that over time [defendant‘s] share of the relevant market increased and, ultimately culminated in [defendant] achieving a 100% share of such market; (b) that two competitors of [defendant] withdrew from, and no competitors entered, the relevant market; (c) that the prices charged by [defendant] for bowling services in the relevant market were higher than those charged by [defendant] in markets where it faced competition; and (d) that because of the limited availability of bowling center and equipment financing, potential competitors confronted a significant barrier to entering the relevant market?

Sometimes these things are a matter of taste. Lawyers might differ over which of these formulations is preferable, and the decision in a case is unlikely to turn on such phrasing variations. We cannot help thinking, however, that judges tire quickly of laboriously reading such detailed Questions Presented and would prefer to see the minutiae elsewhere.

Remember, the Questions Presented section is likely a judge‘s first exposure to your side of the case. It is a place to provide a concise overall view of what is at stake. It is not a place to bury a judge in detail. If judges must wade through facts, the significance of which is not immediately apparent, they may have a hard time grasping what your arguments are about.

Another key to successful appellate litigation (at least for the appellant or petitioner) is to limit the number of questions presented. Here again, there are no universal rules: Two questions presented are sometimes too many and five are sometimes too few. But it is fair to say that judges are more likely to give full attention to fewer issues than to many. An appellate lawyer must resist the temptation (and the pressure from client or trial counsel) to include many issues in the hope that, somehow, lightning will strike one of them. And it is never good advocacy to present two or more questions that simply rephrase what is really a single legal issues.

Sometimes, a succinct introductory sentence or two, or even a succinct paragraph, placed before the questions presented will aid understanding of a complex case. Most courts permit this device, although relatively few advocates use it. Here is an example:

Prior to 1983, the tax code prohibited the compounding of interest on tax deficiencies or on tax overpayments. In section 344 of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), Congress repealed that prohibition and provided for the compounding of all such interest. Section 344(c) of TEFRA directed that these changes would apply to “interest accruing after December 31, 1982.” The question presented is whether section 344(c) authorized the compounding of appellant‘s tax-deficiency interest, which had completely ceased accruing on February 1, 1982.

Elegant prose? Perhaps not. But imagine how much more inelegant it would have been to cram a single sentence with enough subordinate clauses to embrace all of these ideas. The case was technical, as were the issues. The statement of the question presented broke out the main ideas into separate sentences so that the judges could understand more easily what they were being asked to decide.

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