| 1. | When you are the appellee, ensure that your brief advances your client’s affirmative argument. Do not merely repeat the reasoning contained in the lower court’s decision and hope that the trial court’s decision will be affirmed on appeal. Rather, advance a positive argument that is customized to the appellate court that is hearing your case. |
| 2. | Be mindful of the standard of review, which is the level of deference that the appellate court gives to the court below. Some issues are reviewed anew. Other issues afford deference to the trial court or administrative agency. |
| 3. | Appellees should ordinarily include a Counterstatement of Facts to tell the story to the appellate court in a favorable way. Trusting the other side to fairly present the case’s facts to the appellate court is naïve. |
| 4. | Reply briefs should be written so that judges can, if they want, read the reply before they read each side’s opening brief. By the time the reply is filed, the crux of the dispute has usually revealed itself, which lets a reply brief focus on the issues that are likely to dictate the resolution of the case. |
| 5. | Cert petitions should try to show that the opinion that is being challenged will cause broad, recurring problems if it is not corrected. To oppose certiorari, show that a challenged opinion reached a sensible outcome on an uncommon issue on which judicial opinions are uniform. |
| 6. | Amicus briefs should not merely echo what the actual litigants say. Instead, they should provide a unique perspective or argument that the party itself lacks the expertise (or space in its brief) to offer. |
| 7. | If a major development occurs after the briefs are submitted, you may file a supplemental brief to advise the court about the breaking news. |