PRACTICAL APPEALS ADVICE - Part Twelve - Briefing the Hard Stuff

This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in September, 2010


Because you read previous articles in this series and diligently digested all the information about pre-briefing and briefing the easy stuff (fn. 1), you are ready to tackle the statement of facts and the legal issues. This is partly a creative lawyering task and partly an organizational task that requires you to put your facts and authorities in the proper order. As you write, you may need to fill in some blanks in your research, but for the most part you should be done with the work underlying the writing portion of briefing.



The biggest pitfall to providing an acceptable factual recitation of the case is injecting argument into the brief at this point. Similar to a trial, the evidentiary portion of the case is not the time to present your opening or closing argument to the judge or jury. Supreme Court Rule 341(h)(6) requires that the facts be stated "accurately and fairly without argument or comment." You are bound to get in trouble with the Court if this portion of the brief is argumentative or omits everything unfavorable to your position. How would you like to receive an order from the reviewing court directing you to re-file your entire brief because it fails to relate your opponent's motions, evidence and arguments bearing on your legal questions?

Of course, you cannot and should not recite every word contained in the record. The rule only requires inclusion of those facts "necessary to an understanding of the case," which means that only facts pertinent to your anticipated legal arguments need be included. Limiting your factual statement is also important because of the 50-page limit for the appellant's initial brief and the appellee's brief. You do not want your factual recitation to be so lengthy that you leave inadequate space for the all-important legal arguments. In addition, any brief filed in the Third District restricts the number of pages allocated to the statement of facts to 15 pages. (fn. 2)

The page limits (just like nearly everything else in law) are not written in stone. As I noted in my article discussing motions in the reviewing courts (fn. 3), only the needs of your case and your imagination limit the subject of appellate motions. If necessary, you can file a motion to exceed the page limitations in the rules. (fn. 4) However, keep in mind that 50 typed pages should be sufficient to present your arguments, unless the record runs to thousands of pages with multiple legal issues. Before you file your motion, consider whether you can pare down the brief by deleting repetitive factual references or even eliminating unimportant legal issues. As Justice Jackson noted (fn. 5), accumulating every conceivable argument in your appellate case will weaken your strongest points.

In addition, be sure not to neglect citations to the record, even if the same material appears in the statement of facts. Your factual references will be deemed deficient if it amounts to a stream-of-consciousness section that relies on your memory of the contents of the court file and the hearings. Instead, each assertion of fact should reference either the common law record, the report of proceedings, exhibits or a combination of the above. Here are some examples:

On January 7, 1997, the Defendant filed his Answer to the Plaintiff's Complaint. (R. C7-C8)

John Smith testified that the Defendant spit out the victim's ear after biting it off. (R. 322-325) (fn. 6)

Following a hearing, the trial court denied the Plaintiff's Amended Post-Trial Motion. (R. C320; R. 510-517)

The doctor identified the bullet wound to the chest as the cause of death. (R. 175-176; Pl. Ex. #7)

Attorneys for appellees occasionally ask me if they should file a motion to strike the brief of their opponents if the statement of facts is completely one-sided or incomplete. The answer depends on the extent of the deficiency, the amount of work required to fix it, and whether you think the other party will comply sufficiently to present your side of the case. Pro se litigants have a nasty habit of not knowing how to follow the rules and even experienced attorneys can be downright ornery. If you think that your product will be superior to the best efforts of an opponent and preparing this section yourself does not involve an enormous effort, then forget about the motion and prepare your own factual recitation.


Supreme Court Rule 341(h)(3) requires the inclusion of "a concise statement of the applicable standard of review for each issue" in the argument section of the brief. Although this rule allows you to embed the standard in the argument itself or under a separate heading at the beginning of the argument, the Third District requires both appellants and appellees to adopt the latter approach. (fn. 7)

Here are some examples of concise statements of the standard on review:

"This issue of statutory construction is reviewed de novo. [citation]"

"The issue of the admissibility of the evidence is determined by reviewing whether the trial court abused its discretion. [citation]"

The rule requires that you include citation to authority with each standard. Do not confuse the appellate standard with the standard in the trial court. For example, in criminal cases, the State is required to prove every element of a criminal charge beyond a reasonable doubt. To the consternation of many convicted clients, this standard no longer applies on appeal. Instead, the reviewing court considers whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt when viewing the evidence in the light most favorable to the prosecution. (fn. 8) Thus, the standard of review needs to be a subject of your research to avoid incorrect assumptions about which party carries the burden of proof on appeal. In addition, knowledge of the standard of review allows you to properly state whether the trial court is given the benefit of the doubt by a discretionary standard or that more intense review of legal and other decisions is appropriate.


Citations to case law, statutes and textbooks are governed by Supreme Court Rule 6. (fn. 9) The most efficient citation method for Illinois cases is to list either Ill.2d or Ill.App.3d and omit the "unofficial" West N.E.2d reference. The former "official citations" are required and the latter may be added. You need to cite the volume and page where the case begins, plus the pages where discussion pertinent to your issue appears. Out-of-state cases may be cited using official state reports or West. Here are examples:

192 Ill.2d 29, 33-34 (2000)

77 Ill.App.3d 59, 62-63 (4th Dist., 1979), reversed 82 Ill.2d 268, 275-276 (1980) (fn. 10)

You are also required to provide four copies of any non-Illinois cases to the Appellate Court when the brief is filed. (fn. 11) In addition, you should provide copies to the reviewing court of cases decided shortly before you file the brief if they are not yet reported. In case you are tempted to ignore these details, be aware that the Court can deem your legal issue waived if it lacks proper citation to authority. (fn. 12)


Now you have arrived at the meaty center of the document. You can see that if you adopted my approach to brief-writing, your effort to date has already framed the arguments. You already know what you will say and you just need to prepare a clear, learned, beautifully-crafted, flowing bit of legal literature! But seriously, if you have devoted enough time to the other aspects of the brief, then the remaining task is not as daunting as if you tried to work from the arguments backwards. But you need to spend enough time to present well-thought-out issues supported at every step with appropriate authorities.

First, labor over the argument heading as if you were a journalist. You want to include the essential facts and law, usually in one or two sentences, in a way that grabs the reader's attention. Make it as apparent as possible that you should win the appeal. Remember, now is the time for argument! Try something like this:


rather than this:


Then, in the introductory sentences in the body of the argument state your contention on appeal, similar to the heading (but in small case letters). Here you can add facts to flesh out your argument a little more, but restrict your pitch to a single paragraph. If you are the appellee, spend a little time explaining why the appellant has misinterpreted the facts or the law or both, so that the circuit court should be affirmed.

The next paragraph should state the standard of review on appeal. If helpful to your analysis, explain the standard applied in the trial court or some special factor that makes the typical statement of the standard of review inadequate to completely explain your legal analysis.

The body of the argument follows and includes both citations to the record (again) and citations to authorities. You can first state general legal principles, followed by the facts of the case, then the application of the law to the facts. If you wish, you can vary this order depending on your preference, emphasizing the most important aspects of the argument first. I can't tell you how to write well other than to repeat the adage that "practice makes perfect." Few people are gifted with the skill to write on the fly, that is, without the hard work of writing, re-writing, sleeping on it, and reviewing it again.

Though you should not insert insignificant issues into your brief, give some thought to the rule of appellate procedure that legal arguments not presented in the initial brief are waived. (fn. 13) In part eleven in this series, I referred to raising issues on appeal that were not argued in the trial court, especially in criminal cases. I cannot address this point in detail here, but consider that some questions need to be addressed on appeal, even if not mentioned in the post-trial motion. The classic example is an allegation of ineffective assistance of counsel where the record clearly shows significant error, such as the failure to file a speedy-trial motion that would have resulted in the client's discharge from criminal jurisdiction. In addition, the sufficiency of the evidence and contentions of plain error may be raised for the first time on appeal. (fn. 14)

There are a few no-no's central to good brief writing. First, try to cut to the heart of the issue rather than including a long discussion of general legal principles. Remember that you are writing for judges and law clerks with substantial legal training and experience. They all know that the 5th Amendment to the United States Constitution protects against compelled self-incrimination and that the 4th Amendment was adopted in large part to avoid the invasions of personal liberty perpetrated by the British Crown against the colonists. Similarly, serial repetition of numerous cases upholding the discretion of the trial judge to rule on the admissibility of evidence merely obscures the precise evidentiary decision in your case. In other words, get to the point that your appeal concerns a specific error that infected the fairness of the proceedings.

In addition to being laconic rather than loquacious, you should avoid string cites to case authority. Once again, if a proposition of law is well-established, it is pointless to recite 10 cases for that proposition. Instead, choose one or two of the most recent decisions, preferably from the Supreme Court of Illinois, and move on. In addition, footnotes are discouraged (fn. 15) to inspire you to write fluently and not digress. And remember not to overstate your case. Few appeals rise to the level of importance of Miranda v. Arizona or Marbury v. Madison. You are looking for a just result for your individual client, not for a change in the capitalist system. Focus on the precise legal error that calls for reversal or other relief.

Regarding the briefs of appellees, some responsive arguments involve multiple layers on which to defend the decision below. The sequence should be (1) the appellant waived the issue by failing to preserve it in circuit court, (2) the appellant is wrong on the merits, and (3) any error was harmless. Of course, appellants should give some thought to parrying these thrusts in their initial briefs rather than trying to ignore them, then looking silly when the appellee raises these points.


Once your arguments have been written, you are not finished. You need to review their contents and the entire brief from start to finish to make sure it flows and does not contain errors. You may have thought you would emphasize certain points when writing the statement of facts, only to change your mind later. The hard part is to avoid "reader's fatigue," which interferes with meaningful review of your product if you look at it too often in too short a period of time. Hopefully you have allowed enough time for your review before the filing deadline so that you can walk away from the paper or computer screen and come back to it at least a day or two later. Recall that sloppy writing or incomplete legal analysis can sink your case.


In most cases, if you have done a thorough job as appellant in your initial brief, you need not file a reply. Re-stating the same thing you said the first time around is annoying rather than helpful. Naturally, when you prepared the appellant's brief, you anticipated the arguments of your opponent and refuted them from the get-go. Recall that you are not presenting arguments to lay jurors, who may retire with the last address of counsel ringing in their ears. In addition, in the vast majority of cases, the issues have already been litigated in the trial court, so you know the arguments of your antagonist. Tell the learned judge or law clerk up front why your authorities overcome the appellee's position.


Your magnum opus needs to contain everything from the cover page through the appendix. Check Supreme Court Rule 341(a) for details such as the margins, spacing, type-face and binding requirements. Sub-section (d) of the rule governs the correct color of your cover and sub-section (e) tells you how many copies to file and serve. You must provide the Court and opposing counsel with a notice of filing and proof of service, as well as a notice of filing the record on appeal when you return it.


Now you know why large blocks of uninterrupted time are mandatory in order to prepare a professional product for an appeal. You simply cannot squeeze this task into a spare weekend and hope to prepare a polished brief worthy of the attention of the reviewing court. This is especially true of appellants who have already lost their case and need to persuade at least two Appellate Court or four Supreme Court jurists to intervene and overturn a decision of one of their brethren.

Yes, some people try to use a scissors and glue to submit a copy of a jazzed-up trial memorandum or slap together a few pages here and there to comply in the most minimal fashion with the rules. Presumably, few of them have read this far. But those who take pride in the their work and want to diligently fulfill their obligations to their clients will frequently refer to the photo of Father Abraham hanging on their walls. He was considered a "lawyer's lawyer" to whom his colleagues turned for hundreds of appeals -- and then went on to bigger and better things.

My next article will discuss motions for rehearing and petitions for leave to appeal.


fn. 1 Bar Briefs, "Part Ten - Preparation for Briefing" and "Part Eleven - Briefing"

fn. 2 Third District Administrative Order #39 (adopted October 11, 1995) See Part Ten in this series for more information on locating these orders.

fn. 3 See Part Nine in this series, "Motion Practice in the Reviewing Courts," Bar Briefs, October 2009

fn. 4 Consult the requirements in Supreme Court Rule 341(b)(2) for this type of motion.

fn. 5 See Part Eleven in this series regarding briefing the easy parts.

fn. 6 Presumably omitting an exhibit number

fn. 7 Third District Administrative Order #48 (adopted 10/7/04)

fn. 8 People v. Rowell, 229 Ill.2d 82, 98 (2008)

fn. 9 Adopted by reference in Supreme Court Rule 341(g)

fn. 10 Examples of decisions with the State represented by able counsel on appeal.

fn. 11 Uniform Administrative and Procedural Rule 8. See Part 10 in this series for more information on these rules.

fn. 12 Supreme Court Rule 341(h)(7); Kensington's Wine Auctioneers and Brokers, Inc. v. John Hart Fine Wine, Ltd., 392 Ill.App.3d 1, 10 (1st Dist., 2009); People v. Johnson, 385 Ill.App.3d 585, 608-609 (1st Dist., 2008)

fn. 13 Supreme Court Rule 341(h)(7)

fn. 14 People v. Enoch, 122 Ill.2d 176, 190 (1988)

fn. 15 Supreme Court Rule 341(a)