the argument section in the appellate brief in the appellate brief.pdfjr. & sheila simon, legal...

The Argument Section in the Appellate Brief

Professor Lauren SimpsonClass 7Spring 2016

* This presentation is adapted from your Coughlin textbook and from Richard K. Neumann, Jr. & Sheila Simon, Legal Writing (2d ed. 2011), and Linda H. Edwards, Legal Writing & Analysis (3d ed. 2011).

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OF ALL PARTS OF YOUR BRIEF, THERE IS PROBABLY MORE GREY AREA IN THE “A” SECTION THAN IN THE OTHERS: MUST STAY FLEXIBLE AND USE BEST JUDGMENT. MANY OF THE THINGS THAT I SAY TODAY ARE GUIDELINES, AND REAL LIFE MAY CALL FOR FLEXIBILITY.

In a Nutshell . . .

Today You Will LearnI. Large-Scale Organization of the

Argument Section,II. Small-Scale Organization of the

Argument Section, andIII. Tips for Making Your Argument

Section More Persuasive.

I. Large-Scale Organization of the Argument Section

Large-Scale Organization: Order of Issues

What argument/issue goes first? Options: Strongest/most persuasive Greatest relief Most logical Most strategically beneficial

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But recognize when logic or strategy dictates a different lead argument. Ask them for ex. of LOGIC exception. (e.g., SMJ) (E.g., Findoil v. Landsurvey MSJ had only 1 order that was logical) Ask them for ex. of STRATEGIC exception. (e.g., “making space”)

Large-Scale Organization: Special Considerations for Appellee In real life: TRAP 38.2(a)(2)

“When practicable, the appellee’s brief should respond to the appellant’s issues or points in the order the appellant presented those issues or points.”

In moot court and your LSS brief

Large-Scale Organization: Thesis ¶ ¶

Content:◦ What court should do/hold + why (nutshell)◦ Theme◦ Any common authority SOR Procedure substantive◦ Roadmap Dismisses any non-issues Is phrased persuasively (e.g., as summary of position on

each ground)

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Note: not necessarily in this order---e.g., theme often first w/roadmap statements toward end. Bottom line: there’s flexibility. Walk through Wells brief’s thesis paragraph (appt.). Note starts w/theme. Note how “roadmap” is implicit in the summary of the positions/conclusions/relief sought and doesn’t have to be stated apart from the summary of position. Walk through Iain’s Barousse brief’s thesis paragraph (appe.). Tell them what Iain said when I complimented the thesis paragraph in this brief! ☺

Large-Scale Organization: Thesis ¶ ¶

Format:◦ 1-2 ¶¶

Placement:◦ Initial Thesis ¶ Place between “Argument” heading & 1st

PH. Use even if only 1 PH!◦ Subsequent Thesis ¶¶ ( “Mini-Thesis

¶¶”) Use only if a PH has SHs (“fork in road”). Don’t need to repeat theme (but can).

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Remember: it’s possible to have just one PH. I’s also suggest that a thesis paragraph is such an important moment of persuasion that I’d think about including it even if there’s not a fork in the road, i.e., even if there’s not more than 1 PH that follows. Note: subsequent theses paragraphs may contain theme, but don’t have to. Stay flexible.

Example: Initial Thesis ¶ + PHs with No SHs

ARGUMENT

Initial Thesis Paragraph(s)

I. PH for First Ground for Relief

II. PH for Second Ground for Relief

III.PH for Third Ground for Relief

Example: Initial Thesis ¶ + PHs with SHs

ARGUMENT

Initial Thesis Paragraph(s)

I. PH for First Ground for Relief“Mini” Thesis ParagraphA. First SHB. Second SH

II. PH for Second Ground for Relief“Mini” Thesis ParagraphA. First SHB. Second SH

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Note: can sometimes reserve a theme that’s particular to a PH for that PH’s mini-theses paragraph---but try still to have some kind of theme in the initial thesis paragraph.

II. Small-Scale Organization of the Argument Section

Small-Scale Organization: Basics

Use CR[e]AC, but make it persuasive.

1 heading (PH or SH) = 1 CR[e]AC.

Small-Scale Organization: CR[e]AC

C: ◦ PH or SH may serve as “C” (but depends).◦ State as desired relief/disposition + support.

R[e]: State favorably. A:◦ Follow Pro→Con→Pro.◦ Use “Persuasive Trix of the Trade.”◦ Defuse counter-arguments effectively.

C: Multiple possible “levels”◦ Desired holding on merits, procedure, SOR◦ Desired disposition of lower-court judgment (e.g.,

affirm, reverse)

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EXPLAIN THE “MULTIPLE POSSIBLE LEVELS” COMMENT.

III. Tips for Making Your Argument Section More Persuasive

Tip 1: “The law isn’t neutral.”

● Consider breadth of phrasing.● Think about positive or negative

phrasing.● Suggest a conclusion on the rule.● Choose language carefully.● Include favorable aspects of rule.● Deemphasize unfavorable aspects of

rule.● Deal effectively with unfavorable

authority.

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Includes: SOR Procedure Merits Test: If you cut out the R[e] and read it in a vaccuum, can you tell who wrote it? If not, you haven’t done your job. Ask: how deal with adverse rule? Use “Yeah, but” technique. Include and emphasize favorable aspects beyond basic rule. Carefully employ “Trix of the Trade.” HAVE STUDENTS COMPARE AND COMMENT ON BATSON EXCERPTS.

Tip 2: “Deal with counter-arguments effectively.” (Edwards, pp. 197-98; Coughlin, pp. 323-25)

● Doing preemptive rebuttal (appellant)● Using persuasive “Trix of the Trade”● Defusing opponent’s strong or vivid

language/images● Devoting less space● Giving less detail● Phrasing: “Why you win; why

opponent loses”● Introducing counter-arguments

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Explain how to know what to rebut preemptively. Give example of defusing strong/vivid language/images.

Tip 3: “Connect the dots.”● Incorporate legal test’s language in “A.”● Use thesis sentences to start ¶s.● Analogical reasoning:

o Lead in with a thesis sentence.o Compare facts to facts.o Say what the comparison’s result is.

● Show how sequential sentences/¶s relate, e.g.,o Use transitions.o Use a “looping” technique.o Use repetition.

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Remind them of “looping” technique.

Tip 4: “Bolster Your Analysis with Policy.”

For whom? Remember your reader.When? Consider when it’s most

effective.How? Follow the steps for making

effective policy arguments.◦ See TWEN, Class Materials, Class 7: “Class 7—

RESOURCE--making policy arguments (Newmann and Simon) S2016.pdf.”

Where? Consider the best placement.

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FOR WHOM?: The most effective advocates SPEAK THE LANGUAGE OF HIS/HER READER-JUDGE! Because their holdings are stare decisis, COA judges want to know how the position that you want them to adopt promotes (or at least doesn’t contradict) the rule’s policy, how your position will affect future litigants (or the economy or society or the judicial system or etc.)! WHEN?: “Round peg, square hole” + “Where no one has gone before”—especially, but with COA, not bad in general Sometimes, policy can be theme. HOW? See TWEN resource. Basically, if you can, Show how your position promotes policy Show how other side’s position thwarts/doesn’t advance policy Remember: the other side will have its own policy; need to address that as C-A. WHERE? Follows “logos”→ Law, then policy Sometimes, policy can be its own §. Sometimes, it’s woven throughout other arguments. Just depends.

And finally . . .. . . Comments on the appellee’s brief in Law School Land.

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Can either expressly rebut an imaginary appt’s brief OR can simply do the more subtle rebuttal that you’d do as an appt. I’ll accept either. But the former (rebutting an imaginary appellant’s brief) is probably the more logical and might be easier for you, since you’re in the position of arguing second. IN REAL LIFE, the appellee has a fun position: it can expressly clash with what the appt. has said and can more directly/expressly attack the appt’s arguments, though it does so persuasively (word choice, subordinate clauses, juxtaposition with appe’s position, elss space spent on appt’s position, imbedding appt’s position in middle and only after appe. sets out its affirmative arguments, etc.).

the argument section in the appellate brief in the appellate brief.pdfjr. & sheila simon, legal...

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