Don't Just Take My Word For It...Take Judge Dillard's Word for It!

Judge Stephen Dillard clerked on a federal court of appeals and has been a judge on the Georgia Court of Appeals, one of the busiest intermediate appellate courts in the country, for four years, so he’s an expert on how to and how not to write an effective appellate brief (and a fantastic follow on Twitter: @judgedillard).

Judge Dillard recently wrote an article entitled Open Chambers: Demystifying the Inner Workings and Culture of the Georgia Court of Appeals. 65 Mercer L. Rev. 831 (2014). The article contains loads of helpful and interesting information about the Georgia Court of Appeals, including tips for appellate brief writers, which I summarize below.

As those who read this blog know, briefs are very important, and in his article, Judge Dillard confirms the importance of brief-writing at the appellate level: 

To put it plainly, a lawyer's likelihood of success on appeal before our court is largely dependent upon the substance of the appellate brief(s). As my former colleague, Judge J.D. Smith, has rightly and astutely observed, “[t]he Court's procedures and its institutional culture mean that the brief is almost always far, far more important, [and] far more likely to be outcome-determinative than oral argument.”

Id. at 840.

Include an Introduction

Judge Dillard, like many judges, appreciates an introduction:

[C]onsider giving the court a roadmap of your argument at the outset of the brief. Specifically, I strongly recommend including a “Summary of Argument” section, even though our rules do not currently require it. I am constantly amazed at how many times I read briefs that only get to the heart of the argument after spending ten to fifteen pages recounting largely unimportant background information and procedural history. Get to the point quickly. You do not want our judges and staff attorneys reading and re-reading your brief in an attempt to figure out the basis of your client's appeal….

Id. at 837. For a refresher on how to use introductions, check out my prior posts here and here.

Provide All Required Information and Accurate Record Citations

Judge Dillard also notes the importance of accurately citing the record and including all required information in the appellate brief:  

The quickest way to sabotage your appeal is to fail to substantiate legal arguments or key factual or procedural assertions. [The Georgia Court of Appeals] requires that appellant's brief, among other things, “contain a succinct and accurate statement of . . . the material facts relevant to the appeal and the citation of such parts of the record or transcript essential to a consideration of the errors complained of,” as well as the “argument and citation of authorities,” and that “[r]ecord and transcript citations shall be to the volume or part of the record or transcript and the page numbers that appear on the appellate record or transcript as sent from the trial court.” And when an appellant fails to support an enumeration of error in its brief by (1) citation of authority or argument, or (2) specific reference to the record or transcript, “the Court will not search for or consider such enumeration,” which “may be deemed abandoned.” 

Id. at 837-38. While the procedure and requirements may vary from jurisdiction to jurisdiction, I think this advice is universal.

Understand Physical Precedent

Judge Dillard notes that when using opinions that constitute physical precedent only, lawyers should clearly identify that precedent. Physical precedent plays a special role in appellate brief-writing: 

A physical precedent of the court of appeals is neither binding on the state's trial courts nor on the court of appeals itself, but the opinion is instead merely persuasive authority. Typically, a published opinion becomes a “physical precedent” when an opinion of a three-judge panel includes a “concurrence in the judgment only….”

Id. at  838.

In Georgia, concurrences in judgment only aren’t always apparent, and Judge Dillard reminds lawyers that the “only way an attorney can identify an opinion as being or including a physical precedent is to read the judgment line (which is easy to overlook).” Id. at 838-39. And the only way to know the precedential value of a special concurrence in judgment is to “carefully read that concurrence and make sure that it can be reasonably understood as containing a statement of agreement with all that is said in the majority opinion.” Id. at 839. If not, “then the opinion (or any identified division of that opinion) is not binding in future cases.” Id.

But Judge Dillard cautions that a lawyer shouldn’t avoid citing physical precedent opinions, “especially if [the lawyer] believe[s] that the reasoning contained in that opinion is persuasive…so long as [the lawyer] clearly designate[s] the opinion as being or containing a physical precedent.” Judge Dillard and at least some of his colleagues find physical precedents more persuasive than opinions from other jurisdictions, so declining to cite them could be detrimental.

Judge Dillard’s article is an excellent read for anyone interested in the workings of the Georgia Court of Appeals specifically or appellate practice generally.