Appellate Brief Questions & Answers

Q1.   How much background reading should we do?

A1.   Secondary sources can give you a quick overview of an area of law or a more specific aspect.  You should read enough to understand the basic terms and concepts in the area, and secondary sources can also give you cites to relevant primary law.  Your goal is not to learn everything there is about the whole area of law, but you must understand the basic rules relating to your issues and how they fit into the larger area.  You must, of course, move on soon to reading primary sources. 

Q2.   If there are cases in our jurisdiction, do we need to go any further?

A2.  Yes, probably.  If the cases leave room for argument, or the facts are not identical to your facts, your court may want to know what other courts are doing, especially on an issue involving federal law.  If Wisconsin cases favor you (or seem to), you still have to anticipate any counter-arguments by your opponent.  

Q3.  What's the best way to handle a negative case?

A3.  Some strategies include: arguing that the language of the case's holding or reasoning is vague or ambiguous; distinguishing the facts and showing why the case's reasoning, policies, and assumptions don't apply to your facts; finding more recent cases that contradict or criticize the negative case; showing that the case's rule or holding is an aberration or fluke, as compared to other cases within or outside of the jurisdiction; minimizing the significance of the case or the negative language within the case; or criticizing the reasoning of the case (diplomatically). 

Q4.  The law seems stronger for one side, and I'm worried I don't have good arguments.

A4.  Your job as an attorney is to write the best brief you can based on the facts you have, not what you wish they could be.  The law on these questions is not clear or settled, and there is a lot of room for good arguments on both sides.  The briefs on both sides should argue not only their own position but also fully anticipate and address counter-arguments.   

Q5.  The appellant will argue that a different test should apply to from the one I argue.  Should I argue that the business is an arm of the tribe even under the appellant's test or limit it to the question stated in the appeal, i.e., whether the circuit court applied the correct standard? 

A5.  Yes, focus on your own rule or test, but also argue in the alternative.  The circuit court's judgment wasn't very specific about what test it was applying, so there is room to argue what the proper rule is or should be.  Argue your own test first, and explain how your client should win under that test.  Then, also argue in the alternative (e.g., "Even under another test, . . ."). 

Q6.  How much should we anticipate arguments the appellant would make?  In the "real world," we would have the appellant's brief.  Should we respond to the arguments we can imagine the other side is likely to make?  Can I say, "The appellant argues that . . . )?

A6.  Yes, you should anticipate and argue against the appellant's points.  If possible, incorporate your responsive points into your own positive argument, rather than phrasing your counter-arguments defensively.  For example, instead of saying "The appellant argues incorrectly that point X, not point Y, is true,"  say "Point Y, not point X, is true because . . . . Point X does not include . . . ."  If this were a real-world brief, the court might expect the respondent to start with the appellant's argument more obviously, but there is some leeway in how you phrase this.  Remember that readers pay most attention to what comes first, so try to put your own arguments in that position. 

Q7.  Can I use footnotes to explain information that is helpful, but not directly relevant, to my argument?

A7.  Yes, but don't overdo this.  Do not include anything in footnotes that belongs in the text of the brief (e.g., rules, reasoning, facts, argument, citations, etc.)


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