Appellate Briefs and Complex Trial-Level Motions
Federal appellate litigation and complex federal motions: The applicable federal rules leave no room for error, and federal courts demand a level of analysis and writing that is exceptionally rigorous, accurate, and detached.
They seek analysis and writing that is trustworthy and objective — not just about your case, but about each area and source of law that your case implicates. Substance, tone, and clarity are essential. Even the most complex facts and issues must be understandable. It is fatal to avoid unhelpful law — or ignore facts that are clear in the record.
If your papers are inferior, the court will turn to the papers of the other side — and often not look back. They will be integrating your issues and facts into broader legal considerations beyond your particular case; the federal courts are generalist and cohesive in nature.
Trial counsel can benefit from a seasoned outside lawyer who is experienced in all of this — a lawyer who thinks like a federal courts generalist and who writes like a federal courts specialist. Both add value.
The generalist-specialist also adds value regarding threshold, or predicate, issues. Many motions and appeals turn on jurisdiction, procedural posture, applicable substantive standards, standards of review, and more. They can pose the most difficult questions in federal practice.
Such threshold issues often require specialized research and briefing before the merits issues can be addressed. It is fatal to miss them or incorrectly analyze them. The generalist-specialist can see them and properly address them.
Proper foundation and planning for all of the above occurs long before the writing process begins — preferably in discovery or before the first motion from which the case could be won or lost. Some common junctures are as follows:
Pre-trial and trial stages:
Motions to dismiss;
Summary judgment motions;
Motions regarding experts and key evidence;
Motions to secure pre-verdict judgments and/or post-trial relief; and
Pre-appeal and appeal stages:
Jurisdiction — an essential analysis in federal appeals;
Statement of the facts and procedural history;
Standards of review — both correct identification and application of the standards of review; and
Correctly identifying the most promising two or three — never more than four — issues for appeal.
Efficiency and productivity are also important. There is not time for incorrect or undisciplined legal research, revisions or edits that are not affirmatively helpful, writer’s block, serious big-picture errors, or other inefficiencies.
These result in a bill that most clients will not accept, requiring write-offs. They also result in work product that will not impress a federal court.
The time that you set aside for your brief or motion is needed for top-tier research, superior drafting and revising, and clear improvements to the papers with each revision, until they are as accurate and persuasive as possible.
All tasks must be fully accomplished, down to maximizing the persuasive effect of each word in each argument heading. Certainly, in the final hours before filing, there is never time to cut hundreds of words, re-organize arguments, or fix errors in a jurisdiction analysis.
Preparing Motions — and Appeals — at the Trial Level
The time to lay the best foundation for a federal motion or appellate brief is long before the writing starts. A correctly developed record must exist to support the brief and arguments. Identification, development, and framing of key facts and issues should occur as early as possible — even during the pleadings stage and the formulation of discovery — with an eye towards:
The elements of all claims and defenses;
All crucial trial-level motions — motions to dismiss, summary judgment, key evidence motions, experts;
Pre-verdict judgments and/or post-trial relief;
Facts, including potential mixed questions of law and fact; and
Standards of review, if on appeal.
Trial counsel must focus on the multiple issues that occur daily during litigation and trial — issues that require full and immediate attention every day. There is never enough time. Consequently, preparing for a distant motion — let alone an appeal — is often low on the priority list. Yet the early and sustained cultivation of key facts and issues can make the difference. Careful, painstaking development of the record is key.
The seasoned outside attorney — the federal courts generalist-specialist described previously — adds value to trial counsel by efficiently assisting with the development of the key facts and issues, through input and communication tailored to fit trial counsel’s specific needs.
Shaping The Law — Amicus Briefs and Prudent settlement analysis
Some cases are part of a broader effort to modify, secure, or otherwise shape a particular area of law. It may make sense to file an amicus curiae brief to inform a federal appellate court about how a decision or holding will impact others not involved in the case.
One instance is when a legal issue is undecided, or open, in the given circuit and there is favorable law in another circuit that should be adopted (or, conversely, unfavorable law that should be rejected or distinguished).
Drafting an effective amicus brief requires an even higher level of objective detachment and legal synthesis ability. For the reasons discussed, the federal courts generalist-specialist adds value.
Shaping the law also means avoiding the creation of harmful law. Consulting with a federal practice generalist — for a candid, objective risk assessment of the legal issues — helps inform the appeal-or-settle decision that certain cases require.
Such appeal-or-settle determinations are sometimes the best way trial counsel can avoid a judicial decision that, in a worst case scenario, might create or cement precedent that is disfavorable and long-lasting for a client or category of clients.
Here again, it can be a herculean task for trial counsel to properly prepare all of this while in the midst of litigation matters or a trial. Accordingly, I provide not only brief and motion writing, but also efficient consulting and guidance services. That way, when trial counsel needs to pivot to a crucial motion, or prepare an appeal, he or she can submit a persuasive filing with the rigorous, detached analysis that federal courts demand.