Citation(2007) 19 SAcLJ 337
Published date01 December 2007
AuthorPaul TAN LLB (Hons), National University of Singapore
Date01 December 2007

Writing an appellate brief is a momentous task — this may be the last chance to convince a court of law of your client’s case, or you are defending a favourable verdict in the court below after months, if not years, of hard work. Yet, it is not often appreciated just how specialised appellate advocacy is. This article focuses on the written dimension of appellate advocacy and attempts to articulate significant but frequently overlooked aspects unique to writing a persuasive appellate brief.

I. Introduction

1 A by-product of the dramatisation of courtroom litigation in the media is that many believe that legal battles are won and lost in the courtroom. While this may be true to an extent, the influence of written advocacy on judicial decision-making should not to be underestimated. There are at least three reasons to believe that particularly in appeals it is the written submission that exercises a disproportionate effect on the outcome. First, appellate judges here usually read the written submissions before oral argument. A weak or unpersuasive brief creates doubts about one’s case. A strong brief, on the other hand, may have the effect of preempting the concerns of the judges, making one’s job at the hearing easier.1 Second, time allocated to parties to present their oral arguments

on appeal is limited. Even if, as in Singapore, time constraints are more relaxed,2 it is usually still not possible to argue each and every issue or sub-issue on appeal without having to seek leave from the bench for an extension of time.3 This invariably means that on certain issues, even those that are very important, counsel will have to rely on their written briefs to “do the talking”. Third, it is not uncommon for the Court of Appeal to reserve judgment. This diminishes the impact of the oral submission relative to the written brief on the final decision. As Justice Thurgood Marshall of the United States Supreme Court once remarked:

Regardless of the panel you get, the questions you get, or the answers you give, I maintain it is the brief that does the final job, if for no other reason than that opinions are often written several weeks and sometimes months after the argument. The arguments, great as they may have been, are forgotten. In the seclusion of his chambers the judge has only his briefs and the law books. At that time your brief is your only spokesman.4

2 Even where decisions are not reserved or where they are arrived at fairly quickly in judicial conferences after oral submissions are made, well-written briefs would still be important in supplying the foundation for the grounds of decision.

3 Complaints by appellate judges about the quality of written submissions are not infrequent.5 Beyond the obvious point that an

effective brief is instrumental to one’s success on appeal, there are other benefits to taking the time and effort to write well. The first is reputation: lawyers are recognised, first and foremost, by their work product.6 In extreme cases, a judge may even criticise a lawyer in the judgment.7 Second, and more selflessly, a well-researched and well-written brief actively contributes to the development of the law.8 Where written submissions are duplicitous, meandering, incomprehensible, incomplete or inaccurate, the judge wastes time making sense of the submissions, or checking the accuracy of propositions relied on, and less time thinking about the issues at hand. But where points of law are argued with their implications fully analysed, explained and substantiated, the judge would have a solid basis to work from. There can be no doubt of the important role that counsel’s submissions play in judicial decision-making, as evidenced by the numerous occasions on which judges have credited counsel for their arguments.9

4 Notwithstanding their importance, is it possible to impart the skills necessary to write a persuasive appellate brief? In other words, is an article such as this relevant or useful? The successful introduction of the National University of Singapore’s Legal Writing Programme suggests that legal writing skills can (and should) be imparted.10 As with all skills, practice, experience and perhaps talent will separate the good from the best. In the majority of cases, however, a competent, informative and

reasoned submission is all that is necessary or required. The aim of this article is therefore a humble one: it merely attempts to sensitise the reader to aspects of written appellate advocacy that may not always be apparent and to provide a framework within which one’s practical experience may be studied.

5 In writing this article, two limitations were faced. First, it was not feasible, given space constraints, to exhaust in detail each and every point that could be said about writing a persuasive appellate brief. Instead, the intention is to focus on a number of fundamental, yet frequently overlooked, areas. As stated, the article is intended to provide a basis or framework for reflection; it is not a substitute for experience or training or further research. Second, many of the illustrations in this article are borrowed from American and occasionally English sources. This is due to an abundance of literature on appellate advocacy in these jurisdictions; but it also reflects the relative lack of such material in Singapore.11 The general point to be made here is that while principles of good writing are largely universal, some adaptation may be necessary to take into account differences in how our appellate judges read submissions and view their roles.12 This will be addressed at the appropriate junctures.

6 This article proceeds in the following way. First, the article introduces features unique to appellate advocacy in the context of our appellate courts and system. These are vital in orientating oneself to the specialised nature of appellate advocacy. Second, the article examines the process of writing: what are the important considerations when writing the different parts of the appellate brief, such as the statement of issues, the statement of facts, and the arguments? Finally, a list of short suggestions is made, which may assist in fine-tuning the brief so that it is tighter and more forceful.

II. Orientation

7 An appellate brief is a form of communication. As with all forms of communication, its attraction and persuasiveness depends on ensuring that it speaks to its intended audience: the appellate judge. While almost elemental, it is probably the one reason why many appellate briefs are not always effective or persuasive.13

8 One way to be consciously aware of how appellate judges think is to reflect on how one would like the judgment to look like (or, if one were prescient, how the judgment would look like). Thinking about how the judgment might come out is useful not because we can dictate how a judgment will be written but because it trains one’s mind on the concerns of the appellate court. If we cannot imagine our arguments being accepted and published in a judgment, it is not an argument that should be submitted. Put another way, when we understand how judges think and write their grounds of decision, we are better able to engage them more positively towards our point of view. As Professor Llewellyn says:

[An advocate’s] task is to persuade the court to his view of the law and of the facts of his case. What he is up against is therefore the court and its way of doing its work, its way of seeing the law and the facts of any case.14 [emphasis in original]

9 To this end, the following discussion seeks to articulate the unique concerns of appellate courts and judges. It should be added that they are by no means exhaustive and, as alluded to previously, ought to be read in the light of one’s own study of and experience with the courts and

judges one appears before because these observations may assume greater or lesser relevance depending on the constitution of a particular appellate court.15

A. Function of appellate courts and judges

10 The function of appellate courts in the hierarchy of the judicial system differs in kind from that of trial courts. Primarily, appeals are not the forum to complain (only) about how one’s client should have won, or how the result is simply unfair and harsh. One’s client may feel hard done by the decision of the court below, but that is seldom a reason to bring an appeal, and much less a basis for an appellate court to reverse.16 The place to win a lawsuit is in the trial court.17 Appeals, on the other hand, are solely an occasion for the correction of errors.18 Even so, not just any error will suffice to move an appellate court. For the most part, errors of law rather than fact are more likely to gain traction with an appellate court. This is only sensible because it is only the trial judge who has been able to assess the witnesses first-hand.19 Indeed, even when an error of law can be

identified, an appellate court may not intervene if actual prejudice has not been caused.20

11 Consistent with their function, appellate courts have developed a set of principles governing the standard of review. Appellate courts do not, in general, hear an appeal de novo— the only exception perhaps being an appeal from a registrar to a judge in chambers.21 This is particularly true in two areas: findings of primary facts such as the credibility of witnesses,22 and decisions made pursuant to the discretion of the trial judge.23 Other rules abound regulating the adduction of fresh evidence24

and arguments25 and even more basically, the application for leave to appeal itself in certain cases.26

12 Bearing these in mind is especially beneficial in three interrelated ways. First, it helps one decide whether to appeal. It is wrong to labour under the belief that there is “no harm” in appealing if one has lost at trial. Not only does it waste the court’s precious resources to hear unmeritorious appeals, it is likely...

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