Forceful Brief Writing and Oral Argument

By Joseph P. Napoli Esq., Partner and Kristina Georgiou, Esq., Associate

In his celebrated article, John W. Davis, the leading advocate of his time, observed that the supreme objective of a brief is to convince the judicial mind. Davis, The Argument of an Appeal, 26 A.B.A.J. 895 (1940). What is required is a technique of presentation that will persuade to the optimum.

“His (Chief Justice  Hughes’) biographer, Mr. Merlo Pusey of the Washington Post has  written me that his remedy was:’. . . to present  his case  so  clearly,  so  quickly,  and  so forcefully as to forestall any questions which might arise in the judge’s mind before the question could be asked. That seems like a pretty large order, but he seems to have succeeded in many instances.  Justice Cardozo told his associates on the Supreme  Court that  when Hughes appeared before  him in New York, he always waited for twenty-four hours to make his decision to avoid being carried away by  the force of Mr. Hughes’ argument and personality.’ ” Vanderbilt,  Arthur  T.,  Forensic  Persuasion  (1950 John  Randolph Tucker  Memorial Lectures delivered at  Washington and Lee University), page 30.

As a practicing attorney you are constantly faced with the prospects of having to prepare a trial brief, submit a memorandum of law or appellate brief. This article is the first of a series of articles that will deal with legal writing and research, appellate practice and brief writing.


Legal research should begin at the very inception of the case; that is, when the case comes into the office, prior to the drawing of the pleadings and prior to trial. It is at this stage that you will decide the legal theory upon which you will prepare and try your case. The best way to win an appeal is to thoroughly prepare your case on the facts and on the law.



An appellate brief is usually arranged into various parts; preliminary statement, statement of facts, questions presented, argument and conclusion.

Every part of the brief including the preliminary statement should be used to convince the Court of your position.

The function of the preliminary statement is to give the Court at the outset the jurisdictional history of the case and to tell the Court something about the general nature of the case.

In almost every case there will be one point of law which will determine the case on appeal. This should be brought to the Court’s attention in the preliminary statement at the very beginning of the brief. It will aid the Court in reading the brief and prepare the Court for the argument portion of your brief.

“The power of clear statement,” thundered Daniel Webster over 100 years ago, “is the great power at the Bar.” [From an 1849 letter to R.M. Blatchford, quoted in M. McNamara, 2000 Famous Legal Quotations 89 (Lawyer’s Co-operative Publishing Co., Rochester, 1967)].

Daniel Webster’s criterion of clear statement should be followed not only in the preliminary statement but throughout the brief.



The  questions   to  be determined  on  the  appeal  should  precede  the statement of facts  to  enable  the  Court  to .read  the facts  in light of the questions  that  must  be determined. The  selection  and  sequence  of the ”Questions Presented” should also contribute to the objective convincing the Court  of your  position.

Each  question  presented  should  be drafted  to include  the facts  that give rise to the issue that is to be determined  on the appeal.  Thus if one of the issues involved  on the appeal  was the contributory negligence of the plaintiff it should  be framed  to include  the facts  surrounding  said  negligence.  For example: ”Was the plaintiff contributorily negligent as a matter of  law  in  walking  into  the  dark  and  unlit  stairway   leading  into  the basement?”

The appellant should  place his strongest  arguments  first,  both in the “Questions  Presented” and  in  the  “Argument” that  is  to  follow  the “Statement of Facts.”



Preparing the statement of facts is the most difficult and most important  part  of  any  brief.  All  of  the  material   facts   must  be  presented impartially and comprehensively. A plain and simple chronological  statement of the material facts  is usually  the best.

In order to generate a statement of facts for your brief, it is necessary to digest the record first-both the transcript of the testimony  at the trial and  the  exhibits.   Digesting  is  an  art.   How  effectively  it  is  done  will determine  not only the amount  of time consumed, but also the quality of the  resulting  factual  statement.  Do  not  treat  it  as  a  routine  exercise. Stating facts fully and effectively is considerably difficult, but most important.

Ordinarily,  facts  determine  the law that  is applicable  to a case  and governs  the outcome.  Accordingly,  facts  should  always be developed  to the full. Every effort should be made to get all the juice out of them. The discovery  of a tiny, but significant little nut or bolt may turn what would have been a defeat into a victory. Thus, digesting the record and checking the record  references  of each  draft of the Statement  of Facts  should be done  with great care,  in order to dredge up every  significant nugget, no matter  how small, and to present  the inferences  and overtones.

Every  brief needs the vital factor  of organization,  both in the Statement of Facts  and in the Legal  Argument.  The  best  way to organize a Statement  of Facts is to assemble it into compartments  that are introduced by headings.  Headings  within the Statement  of Facts  makes it easier for the reader to absorb  the written material and refer back to essential facts, when necessary,  in reading the Legal Argument.  In addition, the process of organizing a Statement  of Facts  in this manner compels the writer to prepare the brief with greater care and forces the writer to give adequate treatment  to each  introductory  heading.

Mario Cuomo in his article Appellate Advocacy: Some  Observations and Suggestions  (N. Y.L.J., October  3rd, 1963) stated  that:

“The presentation   of  the  facts,   therefore,   presents  the  brief writer with his greatest challenge. In most cases the facts are the. prime stuff out of which his argument must be produced.  It must be  drawn. so as  to  suggest-if not impel-the solution  sought after, while at the same time being honest and straightforward. It must be reduced  to the· material essence  and unencumbered  by irrelevancies,  without being incomplete. It must be faithful to the record   without   depriving   itself   of  the   benefit  of  anything · commonly  known or judicially noticeable  that  might aid in the cause.  All in all,  the task is a delicate  one-as difficult as it is important.” (emphasis  supplied)



Cuomo continued:

“… it is of pervasive importance to the presentation of a case on appeal  that  the  court   be  shown  how  the  result  requested  is compelled by equity and the dictates of justice; .. If he is to be an advocate   he  must  breathe  life  into  his cause  by  showing,  as vividly  as  possible,  that  the  conclusion  he  urges  will serve  a greater cause than mere uniformity. The advocate must convince the court that his solution will result immediately in justice  between the parties and ultimately  in justice to the community.”

Each portion of the Brief devoted to Legal Argument is broken down into separate Points and each Point must begin with a good Point Heading. A point heading is the very apex of a pyramid of argument. It should state the heart of the argument in board-brush but clear and   if possible, vivid terms.  A well written heading immediately  informs the reader  what the writer is driving at.

Writing a good  point  heading is not easy;  If too long or prolix,  the heading cannot be readily understood. On the other hand; if the beading is too short,  it may be So cryptic that it may not convey the message at all.

Only a middle course will really work. A heading should be as short as possible,  yet long enough  to be absolutely clear.

It must be interesting  and provocative and contain your Legal Argument applying it to the facts of the case.

In developing a Legal Argument, it is best to lead from strength rather than weakness.  Hence,  present  the strongest  points first.  The order  may be different when background  material necessary  for an understanding  of the points should  logically come first.  Weak  points dilute strong  points, and should be placed last or omitted,  depending on the writer’s judgment.

Within each Point the writer must weave the principle or principles of law he is relying upon with the operative facts that relate to his Argument.

The cases  and authorities relied on must be cited  and analyzed.

  • First, in citing and discussing  cases,  it is usually best,  again, to lead from strength  rather  than    Put the  best cases  first.
  • Second, in introducing  a case,  it is usually  desirable  to summarize what the case holds before turning to its details.  In fact, all legal writing is more easily understood if the conclusion is stated  before the reasoning  is provided.
  • Third, cases  should be presented  fully enough so that the reader  will not feel that,  in order  to understand  it,  he has  to read  the opinion.  An effective treatment states the form of action; the relevant facts, the holding of the case, and one or more apt quotations. This comprehensiveness gives the case a more solid appearance than a sketchy summary  would provide.
  • Fourth, when an opinion contains  a particularly  cogent  phrase· that may come close to the heart of your own case, emphasize it by repetition.

A certain amount of conscious repetition of major points is often desirable. Otherwise, a main point may be overlooked  by the reader. The end of each  Point should contain  a Conclusion  summarizing  the major  Argument  or  Arguments made throughout  the Brief.



The  summaries  at  the  end  of each Point  should· be combined  and drafted into a Conclusion  that has the key facts,  principles of law and the requested  prayer for  relief: Affirmance,  Reversal  or  Modification.


Mr. Justice  Brennan  has said:

”Oral argument  is the absolutely  indispensable  ingredient of appellate advocacy  . . . Often  my whole notion of what a case is about crystallizes at oral argument.  This happens even though I read all the briefs before oral argument;  indeed,  that is the practice now of all the members of the Supreme Court …” Brennan, Harvard Law  School  Occasional  Pamphlet  No. 9, 22-23 (1967).

Oral Argument does not advance a client’s cause simply because it is oral. Standing at the lectern and simply talking (or worse,  reading) is not the  kind of advocacy  to which Mr. Justice  Brennan  was referring.

To advance  the cause,  Oral  Argument  must do the. things that it is supposed  to do. If it does not, it is not only ineffectual in advancing  the client’s  cause,  but  may very  well be harmful.

The following list contains many of the fundamental aspects as well as practical  tips that go into effective  Argument:

  1. l) THOROUGH PREPARATION: Counsel must not only know his own case, but also be prepared to answer any question on any problem which is closely  related  to his case;  (2) FAVORABLE  FIRST  IMPRESSION:  Counsel must  be  neatly  attired   and  be  possessed   of  a  respectful   manner  as evidenced  by his observation  of the proper formalities and courtesies;  (3) EFFECTIVE OPENING: Counsel’s opening must mentally awaken the Court; (4) STATEMENT  OF THE  ISSUE: Counsel  should tell the Court the specific issue that it is called upon to decide; (5) STATEMENT OF CARDINAL FACTS: The statement of the facts should be limited to the essential facts.  Counsel must develop  these facts in a clear and effective manner; (6) ARGUMENT  MUST BE CONCRETE: Principles of law should not be discussed abstractly, but in  relation  to the  particular  facts  of the  case;  (7) ARGUMENT  MUST STIMULATE INTEREST: The presentation  must be animated and enthusiastic. It must indicate sincerity of purpose and a desire to assist the Court in arriving  at  a  just  and  proper  result;  (8)  Counsel  must  not  divert  the attention   of  the  Court  by  annoying  mannerisms,   distressing  gestures, reading long quotations, or unnecessary  citation of cases; (9) Counsel must be  able  to answer  the  Court’s questions  in a competent  and lawyer-like manner;  and (10) The Conclusion  must  be brief and concise,  and  must state  the  relief requested.


Every  good  trial  lawyer  knows  that  the  great  secret   of  being  a ‘successful  trial lawyer  does  not lie in talent  at courtroom  histrionics  or cross-examination ability or the like, although  these are valuable talents; the great secret of being a successful  trial lawyer is adequate  preparation. Not to the same degree,  but to a considerable extent,  the same secret  is true  of Oral  Argument  on appeal.

Oral advocacy  on appeal does require certain talents and inner resilience and fortitude  that is not required  in general- practice,  or even in trial practice  to the same degree.  Indeed,  there are many lawyers  who should seriously consider letting someone else handle their appeals.  But preparation is still a big “secret” weapon. Any lawyer who is basically qualified to appear in an Appellate Court will improve the quality of the representation he gives to his client if he will take the time required  to prepare  his Oral Argument adequately  and devote that time to the proper manner of preparation.

The Law

The first and most obvious  task  in preparing for oral argument is in mastering  the law of the case  by a thorough  study of the Briefs.

The next task is to study the pertinent  authorities. In doing so, read carefully the authorities on both sides of the case. It is a common error for counsel to have an “ostrich” approach  to the cases cited against him. It is important  to handle the cases  that  hurt as well as the ones that  help.

“Sherardize” all cases on both sides, without exception.  Check the clerk’s  office of the Court  in which the case is pending as to any related cases recently  decided or under consideration. If there are related cases, obtain  Briefs from the  Clerk’s  office or counsel  in the case.


Study the Record on Appeal-The facts on an appeal are contained in one  place  and  one  place  only,  and  that  is in  the  record.   There  is  no substitute for the laborious  reading and rereading of testimony and examination  of  the  exhibits.   This  area  of  preparation   is  the  one  probably neglected  most of  all  by counsel  handling appeals.

The  appellate  judges  interviewed  by  the  author  are  unanimous  in urging that counsel  who intend to argue an appeal familiarize themselves with the facts in the record  to such an extent that they can put their finger on any piece of testimony or evidence in that record at a moment’s  notice.

Topical Outline-After having  already  gone  through  the  laborious process of soaking yourself in your case and polishing your Argument, you now need at the lectern a short topical outline of your Argument with brief catch phrases that are selected by you personally,  so that they will recall to your mind at a glance the whole substance  of the Argument that you want to make on each issue.  These  should be printed  in a fairly large,  highly legible  fashion  on  plain  white  sheets  of  paper,  or  typed  with extra large characters, using very wide margins on both sides and top and  bottom  with ample spacing between  the topics.

This outline should contain items located in such a way that they are quite visible and available but do not distract from  the substance  of the outline  itself.

Handling Questions

Answer  Immediately-Answer questions  immediately,  forthrightly and  use  them  as  hammers  with which  to drive home the force  of your Argument. Rather than seeing them as an interruption  or a delay in your Argument, counsel  should,  as  John  W.  Davis said, “Rejoice when the Court  asks  questions.”

This is your priceless opportunity to engage the judge’s mind directly, to discover  what his doubts  and reservations are, possibly his misconceptions of the facts or law, and to deal directly and forcefully with them, at a time when  he is surely  paying close attention . Never defer the answer to the question with the explanation  that  you will be coming to it later.  As many Appellate  judges  have  said  to  counsel  in  such  circumstances: ”Counsel, you are there  now.”

Instead, turn the question to positive advantage,  using it to further the progress   of  your   Argument   and  to  help  in  the  task   of  persuasion.

Remember that the judge is neither stupid nor inexperienced. The question will always be germane to the issue, and it will be probing toward a key point in  the Argument.

Also,  every   Argument  is  made  up  of  several   points  that  are interrelated.  You may have selected one sequence of organization or one method of approaching  the explanation of your  position ,  but there  will always be other ways of approaching the same question. Seize upon the question  the judge has asked as the ”doorway” into that section of your Argument to ·which it  pertains.

If your Argument is logical and cohesive, it should not be too difficult to begin at any point in it and progress forward, adding the necessary other points, and reach the same conclusion. If the question is directed t   your legal Argument  and not just to a record reference or something very brief it  is  normally  impossible  to  answer   it  without  including  the other interrelated  or  major premises  or presumptions  that are a  part of your  Argument on that point.

Wherever possible, utilize this opportunity to nail down that particular portion of the Argument raised by the question.  It may not be in the sequence you had planned to cover it, but cover it fully and completely, nevertheless,  and then consider  it to be done with.

In this way the answering of questions is not “lost” time, at all. It is time very valuably spent in covering a portion of your Argument that you were going to cover anyway   but covering it in a way that is likely to be much more effective.



Each part of the Brief should be used to convince the Court of your position.  This should be done with the shortest,  most concise and clearest of Briefs.  Consideration  should always be given to the work load of the Court and to the  objective of getting the Court’s  attention  to what you think is important in winning the appeal-via a clear and concise Brief and effective Oral Argument.