Writing a better brief: the civil appeals style manual of the Office of the Maryland Attorney General.I. INTRODUCTION
Five years ago, the Office of the Attorney General of Maryland The Attorney General of Maryland is the chief legal officer of the State of Maryland in the United States and is elected by the people every four years with no term limits. held its first Civil Appellate Relating to appeals; reviews by superior courts of decisions of inferior courts or administrative agencies and other proceedings. Brief Writing Program. This program was part of a concerted effort to improve the level of written appellate advocacy Legal representation by an attorney before any state or federal court of intermediate or final appeal.
The U.S. Courts of Appeals were created by the Evarts Act of 1891 (28 U.S.C.A. § 43) and are divided into 13 judicial circuits. in the civil appeals handled by its attorneys. Since that time, approximately 350 Maryland Maryland (mâr`ələnd), one of the Middle Atlantic states of the United States. It is bounded by Delaware and the Atlantic Ocean (E), the District of Columbia (S), Virginia and West Virginia (S, W), and Pennsylvania (N). Assistant Attorneys General have participated in this program, by listening to lectures about effective brief writing, speaking to appellate judges who sit on the courts before whom the Office most frequently litigates, and engaging in small group discussions in which they have dissected dis·sect·ed
1. Botany Divided into many deep, narrow segments: dissected leaves.
2. Geology Cut by irregular valleys and hills.
Adj. 1. briefs written by them specifically for the program. (1) The centerpiece of the program is the Office's Civil Appeals Style Manual.
The Manual was created for the purpose of improving and standardizing the hundreds of civil appellate briefs that the Office files each year in state and federal courts. The Manual is premised on the beliefs that not only is a great brief better than a good brief, but that a great brief is more likely to result in good law and a positive outcome for our clients. An excellent brief also properly reflects the high professional standards expected of all attorneys when advancing the Office's role in the appellate process.
We share with others the substantive Substantive may refer to:
II. GUIDELINES guidelines,
n.pl a set of standards, criteria, or specifications to be used or followed in the performance of certain tasks. FOR THE STRUCTURE AND CONTENTS OF THE BRIEF
The Manual contains three parts: technical requirements, guidelines, and an appendix. The technical requirements, which are not reproduced in this article, are designed to assure that our civil appellate briefs look the same; they consist of stylistic sty·lis·tic
Of or relating to style, especially literary style.
sty·listi·cal·ly adv. rules that govern the format and appearance of all civil briefs that the Office files. The guidelines, set forth below, articulate articulate /ar·tic·u·late/ (ahr-tik´u-lat)
1. to pronounce clearly and distinctly.
2. to make speech sounds by manipulation of the vocal organs.
3. to express in coherent verbal form.
4. principles that apply to the substantive components of the appellate brief, e.g., the statement of the case, questions presented, statement of facts, summary of argument, argument, and conclusion. The appendix, which also is not reproduced here, contains examples of each of these components.
While the technical requirements leave the brief writer no discretion with respect to the brief's physical appearance, such compliance is not expected with respect to the Manual's guidelines. While the principles are intended to provide guidance on writing an effective brief, they may not apply in all circumstances CIRCUMSTANCES, evidence. The particulars which accompany a fact.
2. The facts proved are either possible or impossible, ordinary and probable, or extraordinary and improbable, recent or ancient; they may have happened near us, or afar off; they are public or . The Office's attorneys are accordingly told that the principles should not be followed if they do not work. The only request we make is that if the individual attorney decides to deviate from the Manual, he or she simply needs to be sure that this decision is made purposefully pur·pose·ful
1. Having a purpose; intentional: a purposeful musician.
2. Having or manifesting purpose; determined: entered the room with a purposeful look. and is supported by a good reason.
These guidelines track the structure and contents of briefs filed in the Maryland appellate courts A court having jurisdiction to review decisions of a trial-level or other lower court.
An unsuccessful party in a lawsuit must file an appeal with an appellate court in order to have the decision reviewed. . The rules governing gov·ern
v. gov·erned, gov·ern·ing, gov·erns
1. To make and administer the public policy and affairs of; exercise sovereign authority in.
2. those briefs, however, are similar in most respects to the rules regulating reg·u·late
tr.v. reg·u·lat·ed, reg·u·lat·ing, reg·u·lates
1. To control or direct according to rule, principle, or law.
2. briefs in other appellate courts, and so they may be of assistance to brief writers elsewhere. Attorneys within the Maryland Attorney General's Office are told that these guidelines are not a substitute for the rules and that they are based on the assumption that the reader is familiar with all applicable rules.
A. Beginning the Brief
Principle 1: Develop your theme.
Regardless which part of the brief you choose to write first, you should identify the brief's "theme" and use the theme in writing virtually every part of the brief. Senior United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. Circuit Judge Ruggero J. Aldisert Ruggero John Aldisert (born 1919 in Carnegie, Pennsylvania) is a judge on the United States Court of Appeals for the Third Circuit.
Aldisert graduated as a bachelor of arts from University of Pittsburgh in 1941. defines the theme as "the unifying focus of your brief" that (1) "directs the court's attention ... to where the heart of the matter lies" and to "the equitable equitable adj. 1) just, based on fairness and not legal technicalities. 2) refers to positive remedies (orders to do something, not money damages) employed by the courts to solve disputes or give relief. (See: equity)
EQUITABLE. heart of the appeal," and (2) answers the question, "What in the heck heck
Used as a mild oath.
Used as an intensive: had a heck of a lot of money; was crowded as heck.
[Alteration of hell. is the message?!" (2) As Judge Aldisert states, the theme does more:
The theme not only sets the flavor of your argument but also sets the mood. It is both the focus and the thesis. It directs the judges' attention immediately to where the trial court's error took place and explains straightaway why the trial court was wrong or, when used by the appellee, why it was right. It tells the appellate court what relief you want. (3)
An appellate theme may be easy to identify, such as when you can articulate in one sentence what the case is about. In other cases, however, the theme may not emerge until you draft an outline of the brief or just start to write the brief itself. If you develop the theme by resorting to the latter technique, you will need to revisit re·vis·it
tr.v. re·vis·it·ed, re·vis·it·ing, re·vis·its
To visit again.
A second or repeated visit.
re your work to make the brief fit the theme. Whatever method is used, you must have a theme that shapes your brief.
Principle 2: Know your audience.
Consider your reader in the overall approach, style, and tone that you use when you begin to write. As two commentators observe, "[W]e must understand our audience and purpose before we begin to write...." (4) As they point out, however, this observation, standing alone, borders on being a cliche. It is not "enough to know, for example, that your audience is an appellate court and your purpose is to persuade it that a trial court misconstrued a statute." (5) Rather, you need to determine consciously what your audience knows.
Judges are very familiar, for example, with the principles of statutory construction or the substantial evidence test, and they do not need a multi-paragraph recitation rec·i·ta·tion
a. The act of reciting memorized materials in a public performance.
b. The material so presented.
a. Oral delivery of prepared lessons by a pupil.
b. of these maxims maxims n. a collection of legal truisms which are used as "rules of thumb" by both judges and lawyers. They are listed in the codified statutes of most states, and include:
"When the reason of a rule ceases, so should the rule itself" . Instead of spending time "Spending Time" is the first single released by Christian artist Stellar Kart.
The lyrics describe the band members desire to spend "more time with God". "Sometimes it’s a real struggle to spend time with God. and energy telling the audience what it knows, and thus advancing no useful purpose, an effective brief devotes greater space to discussing why those familiar principles warrant the result that you seek. In a case involving a statutory construction issue, for instance, focus on the language of the statute and pertinent PERTINENT, evidence. Those facts which tend to prove the allegations of the party offering them, are called pertinent; those which have no such tendency are called impertinent, 8 Toull. n. 22. By pertinent is also meant that which belongs. Willes, 319. legislative history; in an administrative appeal raising a substantial evidence question, focus on the factual findings that warrant the appellate court's deference. You will need, of course, to discuss the controlling legal principles in each of these cases, but these principles should be used to advance, rather than to monopolize mo·nop·o·lize
tr.v. mo·nop·o·lized, mo·nop·o·liz·ing, mo·nop·o·liz·es
1. To acquire or maintain a monopoly of.
2. To dominate by excluding others: monopolized the conversation. , that discussion. In other words Adv. 1. in other words - otherwise stated; "in other words, we are broke"
put differently , "[t]he goal is to find an approach that is informative without being condescending or wasting time." (6)
Being cognizant cog·ni·zant
Fully informed; conscious. See Synonyms at aware.
Adj. 1. of what your audience knows also is important to the overall approach of the brief. While you may assume that judges are familiar with basic legal principles, do not assume that the court is as knowledgeable as you are on the law surrounding sur·round
tr.v. sur·round·ed, sur·round·ing, sur·rounds
1. To extend on all sides of simultaneously; encircle.
2. To enclose or confine on all sides so as to bar escape or outside communication.
n. the issues on appeal. All briefs (appellant A person who, dissatisfied with the judgment rendered in a lawsuit decided in a lower court or the findings from a proceeding before an Administrative Agency, asks a superior court to review the decision. and appellee A party who has won a judgment in a lawsuit or favorable findings in an administrative proceeding, which judgment or findings the losing party, the appellant, seeks to have a higher court reverse or set aside. ) should be written so that regardless of the order in which the briefs are read, the judges will fully understand the issues raised and the context in which they are presented.
B. Statement of the Case
Principle 3: Advocate from the beginning, but do so without arguing.
The Maryland rules of court provide that a brief shall contain "[al brief statement of the case, indicating the nature of the case, the course of the proceedings, and the disposition in the lower court." (7) This requirement contemplates a succinct suc·cinct
adj. suc·cinct·er, suc·cinct·est
1. Characterized by clear, precise expression in few words; concise and terse: a succinct reply; a succinct style.
2. recitation of material procedural facts that describe what the case is about and how it arrived at the appellate level. You need not, however, reproduce re·pro·duce
1. To produce a counterpart, an image, or a copy of something.
2. To bring something to mind again.
3. To generate offspring by sexual or asexual means. the docket sheet or set forth a sterile sterile /ster·ile/ (ster´il)
1. unable to produce offspring.
1. Not producing or incapable of producing offspring.
2. discussion of the case's procedural history. A brief's sole objective is to persuade the reader that the judicial decision below was either right or wrong. The brief writer should advance that purpose at the earliest opportunity, i.e., at the beginning of the statement of the case. Just make sure that this recitation is done with absolute accuracy and no argument. Consider the following examples introducing a statement of the case:
Example 1 Appellant Department of Public of Safety and Correctional Services filed charges of removal against appellees Walter Howard and Brandon Taylor in June of 1992, seeking to discharge them from their positions as correctional officers at the Eastern Correctional Institution. Example 2 This case arises out of charges of removal that Appellant Department of Public Safety and Correctional Services filed in June of 1992 against Appellees Walter Howard and Brandon Taylor, seeking to discharge them from their positions as correctional officers at the Eastern Correctional Institution because: (1) one of the officers assaulted an inmate; and (2) both officers made false statements and reports in an attempt to cover up that assault.
Each example complies with Rule 8-504(a)(2), yet the second example is more effective, because it tells the reader so much more: It provides information that is very favorable fa·vor·a·ble
1. Advantageous; helpful: favorable winds.
2. Encouraging; propitious: a favorable diagnosis.
3. toward one side (the Department) and very unfavorable toward the other (Howard Howard, English noble family. Landowners in Norfolk from the 13th cent., the Howards obtained the duchy of Norfolk through the marriage of Sir Robert Howard to Margaret Mowbray, daughter of Thomas Mowbray, 1st duke of Norfolk. and Taylor Taylor, city (1990 pop. 70,811), Wayne co., SE Mich., a suburb of Detroit adjacent to Dearborn; founded 1847 as a township, inc. as a city 1968. A small rural village until World War II, it developed significantly in the second half of the 20th cent. ); and it delivers a much more complete context with respect to what the case is generally about. A brief that begins like the second example will be more interesting to a judge who reads hundreds of briefs each year.
Advocacy has its limits, however, and the writer must tailor A tailor is a person whose occupation is to sew menswear style jackets and the skirts or trousers that go with them.
Although the term dates to the thirteenth century, tailor the statement of the case accordingly. While all argument is advocacy, not all advocacy is argument. Effective advocacy in the early sections of a brief often consists of selecting information and packaging it advantageously. As the following examples illustrate, the statement of the case should advocate; it should not argue:
Example 1 This case presents a jurisdictional issue triggered by a jury trial request that Petitioner Autos, Inc. filed in a district court action in which its landlord, Respondent Department of General Services, sought to terminate its lease. The district court erroneously entered an order striking Autos, Inc.'s demand for a jury trial, even though the jury trial request by operation of law divested the district court of jurisdiction over the action. Autos, Inc. immediately appealed that decision to the Circuit Court for Frederick County, which improperly ignored Autos, Inc.'s assertion that the court had original jurisdiction over the case due to the jury trial request. The court compounded that error by incorrectly dismissing the appeal as an impermissible interlocutory appeal. Autos, Inc. subsequently filed a petition for a writ of certiorari that this Court granted. Example 2 This case presents a jurisdictional issue triggered by a jury trial request that Petitioner Autos, Inc. filed in a district court action brought by its landlord, Respondent Department of General Services, to terminate its lease. The district court entered an order striking Autos, Inc.'s demand for a jury trial, rejecting its claim that the jury trial request divested the district court of jurisdiction by operation of law. Autos, Inc. immediately appealed that decision to the Circuit Court for Frederick County, which disregarded Autos, Inc.'s assertion that the court had original jurisdiction over the case due to the jury trial request. The court instead dismissed the appeal as an impermissible interlocutory appeal. Autos, Inc. subsequently filed a petition for a writ of certiorari that this Court granted.
These examples contrast the difference between advocacy that is argumentative Controversial; subject to argument.
Pleading in which a point relied upon is not set out, but merely implied, is often labeled argumentative. Pleading that contains arguments that should be saved for trial, in addition to allegations establishing a Cause of Action or and advocacy that is not. While each conveys the same procedural information, the first example crosses the line in a manner that is both unnecessary and likely to draw the ire of a judge who believes that the statement of the case should be "neutral." No useful purpose is served by including words such as "erroneously er·ro·ne·ous
Containing or derived from error; mistaken: erroneous conclusions.
[Middle English, from Latin err ," "improperly im·prop·er
1. Not suited to circumstances or needs; unsuitable: improper shoes for a hike; improper medical treatment.
2. ," and "incorrectly." The first example also assumes the legal conclusion in stating that "the jury trial request by operation of law divested the district court of jurisdiction over the action." That is precisely what is at issue in this case; it should not be treated as an undisputed proposition. This is nevertheless meaningful information that the statement of the case, as an advocacy tool, should include. As the second example shows, this same information can be communicated just as effectively--and without the risk of alienating al·ien·ate
tr.v. al·ien·at·ed, al·ien·at·ing, al·ien·ates
1. To cause to become unfriendly or hostile; estrange: alienate a friend; alienate potential supporters by taking extreme positions. the judge--by packaging it in terms of what the petitioner argued to the district court.
Principle 4: Paint a picture that persuades the reader to the writer's point of view.
The following examples contrast the ways a statement of the case can give the reader a good sense of the context of the case and the brief's theme:
Example 1 (from Comptroller's brief) This case involves an appeal from an administrative decision upholding the right of the Comptroller of the Treasury to freeze the reclassification applications of three of his employees. Example 2 (from Comptroller's brief) This case involves an appeal from an administrative decision upholding the right of the Comptroller of the Treasury to freeze the reclassification applications of three of his employees. The Comptroller imposed the freeze because of a lack of funding and in response to the Governor's September 4, 1990 directive to all state agencies to contain costs to make up a $150 million shortfall in revenues.
Each example states what the case is about, but the second goes much further: It tells the reader the central reason underlying the action that the appellate court has been asked to review.
Principle 5: Continue to articulate the theme long after the introductory sentence.
As the following examples show, a statement of the case is more effective if it advances the theme or theory of the case throughout:
Example 1 (from the Appellee's brief) On January 25, 1995, Appellant moved to intervene as a matter of right in the proceeding below pursuant to Maryland Rule 2-214(a). (E.50.) All parties filed responses opposing the intervention motion. (E.61; 79.) On April 4, 1995, the Circuit Court for Baltimore City (Kaplan, J.) held a hearing at which it denied the motion. (E.193.) Nevertheless, the court stated that Appellant could participate as amicus curiae in order to present its views. (E.193-94.) This appeal arises out of the circuit court's order denying Appellant's motion to intervene in this case. Example 2 (from the Appellee's brief) This is an appeal by Montgomery County from an April 11, 1995 order of the Circuit Court for Baltimore City (Kaplan, J.) denying its motion to intervene in a case brought by parents and children of Baltimore City against the State alleging that the State has failed to provide the "at risk" children of Baltimore with a constitutionally adequate education. Montgomery County sought to intervene as a matter of right, arguing that the resolution of the case would cause it to "devote still more revenues from local tax sources for the support of its public schools." (E.52.) Montgomery County's position was based on the following contingencies: that "there would be a finding of a violation" in the Baltimore City case; that the remedy for such a violation "would be a vast increase in the commitment of State financial resources to the Baltimore City Public Schools System"; and that there would be a corresponding "diversion of ... additional State resources to Baltimore City [that] would cause a diminution in the resources to other jurisdictions." (E.52-53.) The court denied the motion, concluding that the case presents "a basically straightforward issue and that is, are the children of Baltimore City getting an appropriate education or are they being denied an appropriate education." (E.186.) This appeal followed.
The second example is a better piece of advocacy--it contains significantly more meaningful information, and it communicates that information in a punchier and more interesting style.
A stylistic observation should also be made. Although both examples include record extract references in the statement of the case, the Maryland rules impose such a requirement only for the statement of facts. Nevertheless, the preferred practice is to include extract citations whenever possible, because they direct the reader to parts of the extract that you rely on.
Principle 6: The statement of the case should be short, but long enough so that the reader understands the issues that the case involves.
The typical statement of the case should be set forth in one or two paragraphs, such as in Principle 5, Example 2 above. In some situations, however, a short statement of the case may be ineffective due to the nature of the issues involved. Care should be exercised in determining whether it is necessary to provide a fuller and more detailed discussion of the case to communicate to the judge what the case is about.
Principle 7: The statement of the case should make clear that the appellate court has jurisdiction over the appeal.
In explaining how the case made its way to the appellate court, set forth the necessary facts establishing the court's jurisdiction over the appeal. In most cases, this can be done fairly easily by stating that the judgment was entered in the circuit court on a certain date and that the notice of appeal was filed within thirty days of that date. As the following example illustrates, however, this is not always so simple:
The sole issue that this appeal presents is whether the Circuit Court for Baltimore County (Kahl, J.) properly held that suit against Appellant Stuart O. Simms, formerly the State's Attorney for Baltimore City, and Appellant Haven Kodeck, an Assistant State's Attorney, is not barred by absolute prosecutorial immunity. The appellees are three Baltimore City police officers who filed suit seeking monetary relief against the prosecutors and other individuals.... The prosecutors filed a motion to dismiss, asserting that all claims against them are barred by absolute immunity. Without holding a hearing as the prosecutors requested, the circuit court denied their motion. The prosecutors then noted immediate appeals under the collateral order doctrine from the lower court's denial of their immunity claim. See e.g. Mandel v. O'Hara, 320 Md. 103, 134 (1990); Rice v. Dunn, 81 Md. App. 510, 511-13, cert. denied, 319 Md. 581 (1990).
The bottom line: If a potential doubt exists with respect to the appellate court's jurisdiction, include enough information to remove that doubt.
Principle 8: As a general rule, all appellee's and respondent's briefs In The Supreme Court of the United States
JOHN GEDDES LAWRENCE AND TYRON GARNER, petitioners,
STATE OF TEXAS, Respondent. should include a statement of the case.
A Maryland rule of court provides that "the appellee's brief shall not contain a statement of the case unless the appellee disagrees with the statement in the appellant's brief." (8) This rule gives considerable discretion to the brief writer, particularly as sub-section (a)(4) of that rule provides that "the appellee's brief shall contain a statement of only those additional facts necessary to correct or to amplify the statement in the appellant's brief." (9) We have suggested to our attorneys that, as a general matter, they exercise their discretion to include a statement of the case in their appellee's or respondent's brief. In most cases, the opponent's brief will not characterize the nature of the case in a manner that favors our client. Nor, in most cases, will the opponent describe the course of the proceedings or the disposition of the case in the lower court to our agency's advantage, at least not as well as we can. In other words, unless the case is one in which no amount of advocacy can be used in the statement of the case, our attorneys are encouraged to write their own statement because our opponents are most likely not going to be advocates for our clients.
C. Question Presented
After setting out the statement of the case, the brief is required to state "the legal propositions involved and the questions of fact at issue expressed in the terms and circumstances of the case without unnecessary detail." (10)
Principle 9: The question presented should be a brief argument summary, one that is (a) adversarial ad·ver·sar·i·al
Relating to or characteristic of an adversary; involving antagonistic elements: "the chasm between management and labor in this country, an often needlessly adversarial . . . and designed to elicit e·lic·it
tr.v. e·lic·it·ed, e·lic·it·ing, e·lic·its
a. To bring or draw out (something latent); educe.
b. To arrive at (a truth, for example) by logic.
2. a favorable response, and (b) developed with enough law and facts to give the reader a sufficient understanding of the case.
Writers should draft questions that slant most favorably fa·vor·a·ble
1. Advantageous; helpful: favorable winds.
2. Encouraging; propitious: a favorable diagnosis.
3. , but fairly, to the position they are advancing, while also comprehensibly com·pre·hen·si·ble
Readily comprehended or understood; intelligible.
[Latin compreh informing the court of the brief's central arguments. When you write a brief in support of a judicial or administrative decision, consider whether to incorporate language in the question such as "Did the circuit court/administrative agency correctly decide ...?" It may also be effective to include information that pertains to the applicable standard of review. Consider the following examples from an appellee's brief:
Example 1 Did the juvenile court correctly exercise its discretion in revoking a newspaper's access to a confidential juvenile court proceeding? Example 2 Did the juvenile court abuse its discretion in revoking a newspaper's limited access to a confidential juvenile court proceeding, which was otherwise closed to the public, after the newspaper (1) violated the court's prior order prohibiting the disclosure of the identity of the child who is the subject of this proceeding, and (2) refused to agree to conditions designed to ensure that the child's identity would not be divulged?
The first question is short and comprehensible com·pre·hen·si·ble
Readily comprehended or understood; intelligible.
[Latin compreh ; it is effective to the extent it focuses the reader on the circuit court's discretion, which appellate courts are reluctant to second-guess sec·ond-guess
v. sec·ond-guessed, sec·ond-guess·ing, sec·ond-guess·es
1. To criticize or correct after an outcome is known.
a. To outguess.
b. . Certainly, it is more effective than a question stating, "Did the juvenile court juvenile court
Special court handling problems of delinquent, neglected, or abused children. Two types of cases are processed by a juvenile court: civil matters, often concerning care of an abandoned or impoverished child, and criminal matters, arising from antisocial commit reversible error reversible error n. a legal mistake at the trial court level which is so significant (resulted in an improper judgment) that the judgment must be reversed by the appellate court. ?" But it tells the reader virtually nothing about the case.
In contrast, the second question is much more effective for the appellee because it includes additional information more likely to persuade the reader to answer the question in a favorable manner. Adding the word "limited" before the word "access" and stating that the juvenile juvenile /ju·ve·nile/ (ju´vin-il)
1. pertaining to youth or childhood.
2. a youth or child; a young animal.
3. a cell or organism intermediate between immature and mature forms. proceeding "was otherwise closed to the public" qualify the nature of the newspaper's right. The remaining information adds an entirely new dimension to the question that is designed to lead the reader to conclude that there is no abuse of discretion in this case. Consider also using commas and bracketed numbers to break the question into shorter subparts, thus relieving re·lieve
tr.v. re·lieved, re·liev·ing, re·lieves
1. To cause a lessening or alleviation of: relieved all his symptoms; relieved the tension.
2. readers of the obligation of storing too much information as they digest the question.
Principle 10: Provide a complete explanation of the issue on appeal.
It is easy to fall into the trap of writing a question that avoids being abstract but at the same time fails to convey a full sense of the issue before the court. One trick that often works is to use the word "when" in writing the question. As the following examples from a respondent's brief show, this technique forces the writer to provide a fuller description of the issue on appeal.
Example 1 Did Petitioner's demand for a jury trial divest the district court of jurisdiction to strike that demand when Petitioner entered into a lease that expressly waived the right to a jury trial? Example 2 Was the district court's decision striking Petitioner's jury trial demand immediately appealable under the collateral order doctrine when the jury demand could be effectively reviewed on appeal and was inextricably intertwined with construction of the lease?
Had each of these questions ended before the word "when," it certainly would not have been abstract, and it might even have been adequate. But it would not have been a particularly informative question. Using "when," however, makes the writer give a more complete description of the issue that the court is to decide, and the question is markedly improved.
Principle 11: The question presented should emphasize the proper focus.
Ensure that the question presented asks the right question and has the proper focus. Consider the following question from a petitioner's brief:
Does a district court, which is automatically divested of jurisdiction when a party has made a proper jury demand, have authority to find a waiver of the jury trial right based on a lease?
This question would be effective if, as the question leads the reader to believe, the jury demand automatically divested the district court of jurisdiction. But if that is a central issue, as it was in the case in which this question was presented, the question is off the mark because it fails to properly direct the reader's focus. That focus is better stated as follows:
Is a district court automatically divested of jurisdiction when a party has made a proper jury demand, such that the court lacks authority to find a waiver of the jury trial right based on a lease?
Principle 12: Minimize the number of questions presented.
When you are determining the number of questions that are to be presented, the general rule is "the fewer the better." As Judge Diana Diana, in Roman religion
Diana (dīăn`ə), in Roman religion, goddess of the moon, forests, animals, and women in childbirth. She was probably originally a forest goddess and a special patroness of women. Motz of the United States Court of Appeals for the Fourth Circuit The United States Court of Appeals for the Fourth Circuit is a federal court located in Richmond, Virginia with appellate jurisdiction over the district courts in the following districts:
n an audible and prolonged inspiration followed by a shortened expiration.
sigh of satisfaction and conclude that the brief writer really may have something to say." (12)
Circumstances may exist, of course, when deviation DEVIATION, insurance, contracts. A voluntary departure, without necessity, or any reasonable cause, from the regular and usual course of the voyage insured.
2. from this rule is appropriate. Just make sure that such a deviation is necessary. For example, an appeal may involve a number of evidentiary ev·i·den·tia·ry
1. Of evidence; evidential.
2. For the presentation or determination of evidence: an evidentiary hearing.
Adj. 1. rulings. Instead of a separate question for each ruling, consider setting forth separate questions for the two most serious issues, followed by a general question that subsumes the remaining issues, such as "Did the circuit court properly allow testimony on subsequent remedial measures A subsequent remedial measure is a term used in the law of evidence in the United States to describe an improvement or repair made to a structure following an injury caused by the condition of that structure. that the defendants implemented, or did it commit any error in deciding the other evidentiary issues raised below?"
Principle 13: Consider whether to condense con·dense
v. con·densed, con·dens·ing, con·dens·es
1. To reduce the volume or compass of.
2. To make more concise; abridge or shorten.
a. your opponent's questions.
The same principles also apply when you are determining the nature and quantity of questions to include in an appellee's or respondent's brief. Resist the temptation Temptation
Terror (See HORROR.)
as fruit of the tree of knowledge in Eden, has come to epitomize temptation. [O.T.: Genesis 3:1–7; Br. Lit. to parrot parrot, common name for members of the order Psittaciformes, comprising 315 species of colorful birds, pantropical in distribution, including the parakeet. Parrots have large heads and short necks, strong feet with two toes in front and two in back (facilitating the number of questions set forth in the other side's brief. It is not uncommon for an appellate court to rephrase re·phrase
tr.v. re·phrased, re·phras·ing, re·phras·es
To phrase again, especially to state in a new, clearer, or different way. the questions in a party's brief (and in the process reduce their number) before embarking on a legal analysis. If the courts can do it, so can we.
D. Statement of Facts
Maryland rules of court mandate that a brief contain "[a] clear concise statement of the facts material to a determination of the questions presented, except that the appellee's brief shall contain a statement of only those additional facts necessary to correct or amplify the statement in the appellant's brief." (13) Consider the following guidelines when drafting this portion of the brief.
Principle 14: Tell a story.
As one judge notes, "[E]xperienced appellate judges may form their first, and probably their most lasting, impression of your side of the case from your statement of facts." (14) Because the statement of facts immediately precedes the argument, it should attempt to "set up" the reader to begin the argument section favorably disposed dis·pose
v. dis·posed, dis·pos·ing, dis·pos·es
1. To place or set in a particular order; arrange.
2. to the brief's ultimate position. Accordingly, the statement of facts "should be an accurate, interesting narrative of the facts relevant to the underlying legal dispute." (15)
According to according to
1. As stated or indicated by; on the authority of: according to historians.
2. In keeping with: according to instructions.
3. two experts, facts may be organized "according to chronology chronology,
n the arrangement of events in a time sequence, usually from the beginning to the end of an event. , actor, issue, witness, or geography." (16) Although Messrs. Armstrong and Terrell Terrell (tĕr`əl), city (1990 pop. 12,490), Kaufman co., N Tex.; inc. 1883. In a farm area, cattle and horses are raised and there are nurseries; peaches, cotton, and wheat are grown. caution against mixing these approaches (claiming it can be "fatal"), they offer the following example as a way to do so "in complicated situations" without creating "chaos."
By chronology: J. entered first grade.... In 1981, she was placed in.... Two years later, she was moved to.... Then by issue: Starting in 1980, J. began to exhibit behavior that.... As a result of this behavior, school authorities concluded that.... Then by witness: On the question of whether her present nonresidential program has resulted in significant educational progress, Dr. Jones stated that.... Ms. Smith, on the other hand, said that.... (17)
Even with a chronological chron·o·log·i·cal also chron·o·log·ic
1. Arranged in order of time of occurrence.
2. Relating to or in accordance with chronology. approach to organizing facts, however, it may sometimes be necessary to begin elsewhere than at the historical beginning. For example, many of our cases involve complex statutes and regulations. These cases lend themselves well to a compartmentalized com·part·men·tal·ize
tr.v. com·part·men·tal·ized, com·part·men·tal·iz·ing, com·part·men·tal·iz·es
To separate into distinct parts, categories, or compartments: "You learn . . . discussion of the statutory and regulatory reg·u·late
tr.v. reg·u·lat·ed, reg·u·lat·ing, reg·u·lates
1. To control or direct according to rule, principle, or law.
2. scheme, followed by the facts giving rise to the appeal. Engaging in this type of approach, after an introductory statement about the case, accomplishes several objectives. It tells the reader what to expect, and it avoids the temptation to jam too much information into the brief at one time. It also provides a more appropriate "home" for this type of information than a generic "Introduction" section used by many writers to describe applicable statutes and regulations at issue in the appeal.
Use the witness approach to organizing facts with care. As Judge Motz comments, "[A]void simply recounting `he testified, she testified'.... " (18) A witness-by-witness summary of testimony rarely accomplishes the goal of setting out an engaging account of facts that the reader will want to follow. Instead, it is more likely to be repetitive and unfocused un·fo·cused also un·fo·cussed
1. Not brought into focus: an unfocused lens.
2. . Further, by forcing the reader to figure out the relevance of the summarized testimony, you may lose rather than capture the judge's CERTIFICATE, JUDGE'S, English practice. The judge who tries the cause is authorized by several statutes in certain cases to certify, so as to decide when the party or parties shall or shall not be entitled to costs. interest. Your goal should be, as Judge Motz suggests, to "tell a story." (19)
Principle 15: Establish and maintain your credibility with accuracy and fairness.
The story you tell in the statement of facts is FACTS I Federal Agencies' Centralized Trial-Balance System a road map to the record. Every statement must be accurate and supported by material in the record. A good way to ensure this level of accuracy is to follow every sentence with a citation Citation
(foaled 1945) U.S. Thoroughbred racehorse. In four seasons he won 32 of 45 races, finished second in ten, and third in two. He won the 1948 Triple Crown, and became the first horse to win $1 million. He set a world record in 1950 by running a mile in 1:33 3/5. to the record. An occasional sentence of summary or orientation may not need a record citation, but be sure the facts contributing to such a sentence are stated nearby with citations. Judges check the record. If you stretch facts or distort the record, you will lose credibility; one error often casts into doubt your entire effort.
A first cousin of accuracy is fairness, but do not confuse con·fuse
v. con·fused, con·fus·ing, con·fus·es
a. To cause to be unable to think with clarity or act with intelligence or understanding; throw off.
b. fairness with neutrality. If a witness at trial testified clearly to facts establishing your case, it is perfectly fair to state those facts in your brief forcefully force·ful
Characterized by or full of force; effective: was persuaded by the forceful speaker to register to vote; enacted forceful measures to reduce drug abuse. and as an advocate. Neutralizing that favorable fact into a sterile statement to which your opponent would not object surrenders an opportunity to lay the foundation for your position. Effective advocacy occurs when you marshal An English word that means to arrange into a particular order as a means of preparation. See data marshalling. favorable facts and state them accurately and fairly, with detailed citations to the record. Fair advocacy often gives way to inappropriate (and weak) argument, however, when buzzwords Below is a list of common buzzwords which form part of the business jargon of Corporate work environments. General Conversation
non-existent adj → inesistente
adj non-existent record support.
Effective advocacy of facts also includes dealing directly with facts unfavorable to your position. Doing this eliminates the risk of unpleasant accusations from your opponent (or worse, from the court) that you are attempting to mislead mis·lead
tr.v. mis·led , mis·lead·ing, mis·leads
1. To lead in the wrong direction.
2. To lead into error of thought or action, especially by intentionally deceiving. See Synonyms at deceive. the court, and it enables you to cast lousy lous·y
adj. lous·i·er, lous·i·est
1. Infested with lice.
2. Extremely contemptible; nasty: a lousy trick.
3. facts in the best light possible from your perspective. Giving the complete picture bolsters your credibility by enhancing the sense that you are handling facts fairly.
Principle 16: Use the statement of facts to advance the theme of the brief
Because facts are not neutral, the writer should view this portion of the brief as yet another opportunity to be an advocate. The relevance and significance of facts are largely determined by the manner and order in which they are organized and presented. The presentation of facts will likely have a greater impact if the facts are structured in a way that sets up and furthers the theme of the brief. Consider the following example:
On December 2, 1993, the Board of Physician Quality Assurance charged respondent Lester H. Banks, M.D., with "immoral or unprofessional conduct in the practice of medicine" under [section] 14-404(a)(3) of the Health Occupations Article. Those charges were based on his sexual harassment of female staff while working at Carroll County General Hospital as a house physician. As the Court of Special Appeals noted, "Dr. Banks does not dispute that any of the incidents of harassment took place," (App. 2 n. 1), nor does he dispute "that his conduct was immoral and unprofessional." (App. 10.) "Witness #1," a unit secretary on the hospital's East Wing, testified that Dr. Banks often stopped by the nurses' station, ran his hands through her hair, caressed her head and neck, and made sexual comments. (App. 2-3.) She testified that, on one occasion, she was in the kitchen with him when he got up and closed the door, causing her to become very frightened and to leave the room. (App. 3.) On another occasion, Dr. Banks approached her from behind and put his arms around her waist. (Id.) She testified that this conduct was unwelcome, that it embarrassed her and made her uncomfortable, and that she asked Dr. Banks to stay away from her. (Id.) She also testified that he was "dressed in green scrubs at the time of the offensive touching.... " (E. 6 & 16.) In a report that this witness subsequently filed describing Dr. Banks's repeated touching and rude sexual comments, she stated that his "offensive conduct often occurred in areas where patients, visitors, and other staff could observe the advances." (App. 3.)
The first paragraph in this example states the brief's theme--that Dr. Banks engaged in immoral or unprofessional conduct in the practice of medicine. The sentences that follow then advance that theme by highlighting those facts that build on and develop that assertion (programming) assertion - 1. An expression which, if false, indicates an error. Assertions are used for debugging by catching can't happen errors.
2. In logic programming, a new fact or rule added to the database by the program at run time. .
Principle 17: It is usually necessary to include a complete statement of facts in an appellee's or respondent's brief.
Maryland's appellate court rules limit an appellee's brief to setting out "only those additional facts necessary to correct or amplify the statement in the appellant's brief." (20) With few exceptions, "additional facts" will almost always be "necessary to correct or amplify" the statement of facts in the appellant's brief. Because the appellant's counsel is an advocate, the appellant's selection and arrangement of facts will rarely be sufficient, without correction or amplification amplification /am·pli·fi·ca·tion/ (33000) (am?pli-fi-ka´shun) the process of making larger, such as the increase of an auditory stimulus, as a means of improving its perception. , to tell the story of the case from your client's perspective. The difficulty, however, arises in presenting only the additional facts needed to augment aug·ment
v. aug·ment·ed, aug·ment·ing, aug·ments
1. To make (something already developed or well under way) greater, as in size, extent, or quantity: or correct the appellant's statement. Because facts exist in context, a disjointed presentation that isolates corrections and amplifications is almost certain to be awkward, ineffective, and maybe even unfair. For example, the isolated correction of the appellant's inaccurate statement of a relatively minor fact will give that fact undue emphasis. Similarly, the need to amplify a handful of points may direct unwarranted attention to those points, to the detriment Any loss or harm to a person or property; relinquishment of a legal right, benefit, or something of value.
Detriment is most frequently applied to contract formation, since it is an essential element of consideration, which is a prerequisite of a legally enforceable contract. of facts that both parties acknowledge to be more important. Indeed, the cumbersome cum·ber·some
1. Difficult to handle because of weight or bulk. See Synonyms at heavy.
2. Troublesome or onerous.
cum process of orienting o·ri·ent
1. Orient The countries of Asia, especially of eastern Asia.
a. The luster characteristic of a pearl of high quality.
b. A pearl having exceptional luster.
3. the reader to a particular correction or amplification--"Appellant states A, B, and C, but the evidence actually establishes A+X and B-Y See color difference and YUV. and Z, not C"--often takes as much space as simply restating the facts, and runs the risk of introducing blatant argument into the statement of facts.
In most cases where there is a need to correct or amplify facts, the most efficient, fair, and effective way to accomplish that goal is to provide a complete statement of facts incorporating the necessary corrections and amplifications. It is the most efficient means because it permits the judge reading your brief to read it continuously and coherently, without turning repeatedly to the appellant's brief to understand the points on which the facts are disputed. (This is particularly true because some appellate judges have told us that they read briefs from our Office first, even if we represent the appellee.) It is the most fair approach because it gives all facts in appropriate context, without the distortion distortion, in electronics, undesired change in an electric signal waveform as it passes from the input to the output of some system or device. In an audio system, distortion results in poor reproduction of recorded or transmitted sound. that is inevitable in a piecemeal piecemeal
patchy, e.g. necrosis of the liver in which groups of hepatocytes are separated by small groups of inflammatory cells and fine, fibrous septa following extension of the inflammatory process beyond the limiting plate. supplementation of facts, and because it avoids the argumentativeness Argumentativeness
Absolute, Sir Anthony
warm-hearted but testy; always blames others. [Br. Drama.: The Rivals]
peevishly disputes with Alice. [Br. Lit. inherent in pointing out deficiencies in the appellant's brief. It is by far the most effective technique because it tells your client's story and advances the theme of your brief.
Because your statement of facts will be a complete statement, avoid using introductory sentences such as, "The appellee agrees generally with the appellant's statement of facts, subject to the following additions," or "The appellee submits this statement of facts because of material omissions from the appellant's statement of facts."
Principle 18: State only those facts that are necessary to understanding the legal issues that the case involves.
Include in the statement of facts all material facts, i.e., those facts that the reader needs to know to appreciate the context surrounding the legal controversy at the heart of the appeal. Unless the issue on appeal warrants it, you should not need to provide an exhaustive list of every procedural event that occurred and the date of its occurrence. In the ordinary case, these kinds of facts add nothing to your brief. Refrain from inundating the court with similarly unnecessary detail or facts that relate to issues that were significant at the trial court level but that are no longer important at the appellate stage.
Principle 19: Provide record extract citations for each of the facts that you discuss.
The statement of facts should contain citations to the record extract for each factual contention A condition that arises when two devices attempt to use a single resource at the same time. See contention resolution and CSMA/CD. made, not just to ensure the accuracy of the statement, but also because judges often will want to know the source of the facts that you have asserted. That source should be the original source, i.e., a witness's testimony or a document, not an administrative law administrative law, law governing the powers and processes of administrative agencies. The term is sometimes used also of law (i.e., rules, regulations) developed by agencies in the course of their operation. judge's or circuit court's description of the evidence.
If all of the facts in a paragraph are set forth in the same page of the extract, a citation at the end of the paragraph is sufficient. If multiple pages are involved, however, provide a citation at the end of each sentence, even if these facts come from the same source such as a witness or document. Citations to a pleading Asking a court to grant relief. The formal presentation of claims and defenses by parties to a lawsuit. The specific papers by which the allegations of parties to a lawsuit are presented in proper form; specifically the complaint of a plaintiff and the answer of a defendant plus any , affidavit affidavit
Written statement made voluntarily, confirmed by the oath or affirmation of the party making it, and signed before an officer empowered to administer such oaths. , or other document with numbered paragraphs should include a reference to the appropriate paragraph (e.g., E. 247 [paragraph] 8).
Principle 20: Discuss the decision being reviewed.
Whenever possible, the statement of facts should include a succinct and meaningful discussion of the decision that the appellate court is reviewing. Remember, judges read the statement of facts just before proceeding to your argument. A discussion of the decision below reorients their focus; it can be used to highlight either the central error that you are asking them to correct or the major flaw in your opponent's argument. Consider the following example from the State's brief:
Following a two-day hearing, the circuit court enjoined the implementation of the Commissioner's regulations restricting smoking in indoor places of employment. (E. 308; 311.) The circuit court found that plaintiffs satisfied the likelihood of success factor set forth in Dept. of Transp. v. Armacost, 299 Md. 392 (1984), because they raised "significant questions" as to two of their claims and "additional evidence" was required as to a third claim. (E. 307.) The court further held that the balance of convenience favored the plaintiffs because the Commissioner's regulations "would work a severe hardship upon a significant number of citizens of this State." (Id.) The court also found that plaintiffs would suffer irreparable monetary losses absent an interlocutory injunction and that it was in the public interest to enjoin the implementation of the regulations. (E. 307-308.)
Great care should be taken, therefore, to squeeze out whatever juice the lower court's decision contains. Sometimes, of course, there may be very little to discuss, such as when a circuit court simply enters a pro forma As a matter of form or for the sake of form. Used to describe accounting, financial, and other statements or conclusions based upon assumed or anticipated facts.
The phrase pro forma order granting a motion to dismiss dismiss v. the ruling by a judge that all or a portion (one or more of the causes of action) of the plaintiff's lawsuit is terminated (thrown out) at that point without further evidence or testimony. or a motion for summary judgment motion for summary judgment n. a written request for a judgment in the moving party's favor before a lawsuit goes to trial and based on recorded (testimony outside court) affidavits (or declarations under penalty of perjury), depositions, admissions of fact, answers . In those cases, state the basis of the motion and summarize sum·ma·rize
intr. & tr.v. sum·ma·rized, sum·ma·riz·ing, sum·ma·riz·es
To make a summary or make a summary of.
sum what the court did.
Principle 21: Decide where to put the heart of the best facts.
In some cases, particularly those that involve substantial evidence issues, you may want to put the best facts up front so that the judge is practically convinced of the correctness of your position from the statement of facts alone. In other cases, however, it may be more effective to save the best facts for the argument section of the brief, and so it might make sense to discuss them in a summary fashion in the statement of facts. Do this, without making your brief sound redundant, by restating, rather than repeating, good facts. For example, the circuit court decision that you are defending on appeal may contain very powerful and helpful language. You can get extra--not the same or repetitive--mileage out of that language by paraphrasing in the statement of facts what the circuit court did, and then quoting in your argument relevant portions of the circuit court decision. The same approach would work with an exhibit or a witness's testimony: If this is "smoking gun" evidence, you might want to give an abridged version of this evidence in the statement of facts and then quote the exhibit or the witness in the argument.
Principle 22: Consider when to repeat "great" facts.
Although facts should not be repeated as a general rule, some facts are so good that you'd you'd
1. Contraction of you had.
2. Contraction of you would.
you'd you had or you would
you'd have ~would almost be crazy not to repeat them. If, for example, the plaintiff in an age discrimination case inadvertently states at his deposition Deposition
Christ is taken from the cross and enshrouded. [N.T.: Matthew 27:57–60; Christian Art: Appleton, 55]
See : Passion of Christ that he is thirty-eight years old--and thus not old enough to enjoy the protections of the Age Discrimination in Employment Act--you may want to quote this admission both in the statement of facts and the argument.
E. Summary of Argument
In the federal courts of appeals, attorneys are told to draft a summary of argument setting forth "a succinct, clear, and accurate statement of the arguments made in the body of the brief." (21) While no counterpart counterpart n. in the law of contracts, a written paper which is one of several documents which constitute a contract, such as a written offer and a written acceptance. to this rule exists in the Maryland Rules, the latter do not prohibit pro·hib·it
tr.v. pro·hib·it·ed, pro·hib·it·ing, pro·hib·its
1. To forbid by authority: Smoking is prohibited in most theaters. See Synonyms at forbid.
2. the inclusion of a summary of argument in briefs filed in the Maryland appellate courts. We encourage attorneys in our Office to write a summary of argument in briefs that contain either more than fifteen pages of argument or multiple, complicated issues. The summary of argument section immediately precedes the argument section of the brief.
Principle 23: State the theme of the brief in the summary of argument.
A properly written summary of argument fulfills the important goal of providing a concise overview of the arguments set forth in the brief, thus informing the reader of the theme and scope of the brief. As illustrated in the following introductory paragraph from a summary of argument, the objective is to provide the court with the "big picture":
This case involves fundamental issues of federalism that affect one of the most basic rights of the amici states: the right not to be sued in their own courts without their consent. That right was a core attribute of state sovereignty when the Constitution was ratified; it was made an explicit part of our national framework when the Eleventh Amendment was adopted; and it is as much an essential component of state sovereignty today as it was when this nation was formed over two hundred years ago. In holding that Congress lacks the authority under its Article I Commerce Clause powers to usurp what is and always has been an inviolable element of state independence and integrity, the Supreme Judicial Court of Maine properly recognized these postulates and reached a decision that carefully preserves the historic balance of power that underlies and welds the relationship between the federal government and the states.
Principle 24: Include all significant issues and sub-issues in the summary of argument.
The federal rule cautions that the summary of argument "must not merely repeat the arguments headings." (22) Nevertheless, argument headings should serve as a guide to constructing the summary of argument because argument headings, like the summary of argument, are designed to apprise the judges of the core arguments set forth in the brief. The summary should advance a theme that will be "all-inclusive and [will] subsume sub·sume
tr.v. sub·sumed, sub·sum·ing, sub·sumes
To classify, include, or incorporate in a more comprehensive category or under a general principle: the various points to be discussed in the brief." (23) In contrast to argument headings, however, the summary needs to include a more extensive (albeit condensed con·dense
v. con·densed, con·dens·ing, con·dens·es
1. To reduce the volume or compass of.
2. To make more concise; abridge or shorten.
a. ) discussion of the different issues discussed in the brief.
Having said this, do not feel compelled to include in the summary of argument a reference to every issue addressed in the brief. Some issues are truly inconsequential in·con·se·quen·tial
1. Lacking importance.
2. Not following from premises or evidence; illogical.
A triviality. and merit terse Terse - Language for decryption of hardware logic.
["Hardware Logic Simulation by Compilation", C. Hansen, 25th ACM/IEEE Design Automation Conf, 1988]. treatment in the argument section of the brief. It is not necessary to waste ink in the summary on such issues.
Principle 25: Use the summary of argument as an organizational tool.
The summary of argument, whether you write it before or after you draft the argument portion, also ensures that the brief is correctly organized. Briefs often address multiple issues and sub-issues, and frequently contain alternative theories. Writing the summary first helps map out an outline of the argument for you to follow. Alternatively, if you write the summary after you have written the argument, use the summary to revisit the structure of the brief, such as when the summary logically suggests a better order to the argument.
F. The Argument
Principle 26: Give context before discussing details.
The way in which an argument is organized marks the principal difference between a brief that is mediocre me·di·o·cre
Moderate to inferior in quality; ordinary. See Synonyms at average.
[French médiocre, from Latin mediocris : medius, middle; see medhyo- and one that is good or superior. As the late Maryland Court of Appeals' Chief Judge Robert C. Murphy Robert C. Murphy (October 9, 1926 - October 31, 2000) was a lawyer and jurist from Baltimore County, Maryland. He served as Chief Judge of the Maryland Court of Appeals, the state's highest court, from 1972 to October 1996. He was appointed by then Governor Marvin Mandel. suggested, focusing your effort on "more sensible and effective organization" will lead to a "fundamental improvement" in any brief. (24) A critical part of an argument's organization is an introduction that gives readers the context for your argument so that they understand the basic elements of your position. An effective way to do this is to structure the beginning of your argument so that it "goes for the jugular vein jugular vein
Any of the three jugular veins: anterior, external, and internal. ." (25)
Translation: If you are writing an appellant's or petitioner's brief, the way to convince the appellate court that the decision below is wrong is, first, to identify the mistake that the lower court committed, and then to set forth the reasons mandating reversal reversal n. the decision of a court of appeal ruling that the judgment of a lower court was incorrect and is reversed. The result is that the lower court which tried the case is instructed to dismiss the original action, retry the case, or is ordered to change its . Similarly, if you represent the appellee or respondent In Equity practice, the party who answers a bill or other proceeding in equity. The party against whom an appeal or motion, an application for a court order, is instituted and who is required to answer in order to protect his or her interests. , your objective is to persuade the court that the decision below should be affirmed af·firm
v. af·firmed, af·firm·ing, af·firms
1. To declare positively or firmly; maintain to be true.
2. To support or uphold the validity of; confirm.
v.intr. ; therefore, first show what the lower court did with respect to the specific issue raised on appeal, and then explain why and how the court correctly resolved that issue. Consider the following introductory portion of the petitioner's argument from a case used in several of Maryland's brief-writing programs:
The district court improperly granted the Department's motion to strike Autos, Inc.'s jury trial request because, under Md. Cts. & Jud. Proc. Code [section] 4-402(e), Autos, Inc. has a right to a jury trial that, once demanded, immediately vested sole jurisdiction in the circuit court over Autos, Inc.'s dispute with the Department. Section 4-402(e)(1) provides that a party may demand a jury trial "[i]n a civil action in which the amount in controversy exceeds $5,000...." Autos, Inc.'s counterclaim asserted that its possessory interest exceeded $5,000. The Department offered no evidence below that contradicted this assertion. Nor did the district court cite any such evidence in striking Autos, Inc.'s jury trial request. Under the express terms of [section] 4-402(e)(2), therefore, the district court was obligated to transfer the case "forthwith" to the circuit court. Accord Carroll v. Housing Opportunities Commn., 306 Md. 515, 518 (1986). The circuit court thus erred in believing it had no jurisdiction over this case, as did the district court in thinking that it did and ruling on the Department's motion to strike, because "it is the demand for a jury trial, in and of itself, which acts to divest the district court of jurisdiction and simultaneously to confer jurisdiction upon the circuit court." Ruddy v. First Natl. Bank of Maryland, 48 Md. App. 681, 684 (emphasis in original), aff'd, 291 Md. 275 (1981).
Principle 27: Begin the argument by (a) succinctly suc·cinct
adj. suc·cinct·er, suc·cinct·est
1. Characterized by clear, precise expression in few words; concise and terse: a succinct reply; a succinct style.
2. identifying the central issue that the appeal presents, (b) stating why that issue was correctly or incorrectly resolved below, (c) setting forth the applicable law, and (d) saying why the law supports your position.
To state this principle another way, consider the following "formula" as a means of supplying the court with the necessary context for your argument: (a) Identify the heart of the decision being appealed; (b) state the central reason why that decision should be reversed or affirmed; (c) set forth concisely con·cise
Expressing much in few words; clear and succinct.
[Latin conc the governing legal principles; and (d) explain why those principles mandate the result that you advocate. You can usually do all this in a paragraph or two. As shown in the example below from an appellant's brief challenging a lower court's decision, beginning an argument in this manner focuses readers on the specific issue on appeal and tells them what to expect in the pages ahead:
The circuit court held that the cost-containment measure at issue in this case constitutes a "regulation" within the meaning of Md. State Govt. Code [section] 10-101(e) and was required to be promulgated in accordance with the notice and comment requirements of the Administrative Procedure Act. In reaching this holding, the court rejected the State's argument that existing regulations authorize the containment measure, stating that "the Court believes that COMAR does not provide a valid regulatory basis for the implementation of the 1994 cost containment policy." (E. 124.) The decision below should be reversed because the specific implementation of existing regulations does not constitute rulemaking within the meaning of the Administrative Procedure Act, and those regulations properly authorize the precise regulatory action that the circuit court invalidated.
This example could have begun with the statutory definition of "regulation" set forth in the Administrative Procedure Act Administrative Procedure Act n. the Federal Act which established the rules and regulations for applications, claims, hearings and appeals involving governmental agencies. , as that is the central issue involved in the case. But such a beginning would have been too abstract and unwieldy--the definition of regulation consumes almost half a page--and it would have left the appellate judges wondering, "Why do we care about this?" The writer needs to let readers know as early as possible why they should care.
There is a caveat to this principle. If your brief contains a summary of argument, it may be repetitive to include this type of context-setting introduction at the beginning of the argument section. Repetition REPETITION, construction of wills. A repetition takes place when the same testator, by the same testamentary instrument, gives to the same legatee legacies of equal amount and of the same kind; in such case the latter is considered a repetition of the former, and the legatee is entitled should be avoided, but an introduction that avoids literal In programming, any data typed in by the programmer that remains unchanged when translated into machine language. Examples are a constant value used for calculation purposes as well as text messages displayed on screen. In the following lines of code, the literals are 1 and VALUE IS ONE. repetition may be useful to reinforce the brief's theme.
Principle 28: Incorporate the standard of review and other pertinent information into the argument.
Many briefs begin with: (a) a "standard of review" section that recites well-settled (and over-cited) legal principles, such as those pertaining per·tain
intr.v. per·tained, per·tain·ing, per·tains
1. To have reference; relate: evidence that pertains to the accident.
2. to statutory construction or substantial evidence; (b) a complicated discussion of the complex statutory/regulatory regime at issue in the case; or (c) a detailed review of the relevant facts that lie at the heart of the appeal. While some or all of the above may be instrumental to the argument, an abstract presentation of such principles at the beginning of the argument, or indeed, anywhere in the argument, will be ineffective unless an adequate foundation has been laid for readers to fully understand the context surrounding these principles, statutes, or facts.
For example, it is not uncommon to see a brief in an administrative appeal begin with an extended discussion of the law governing the various machinations machinations
cunning schemes or plots to gain power or harm an opponent: the machinations of a power-hungry institution [Latin machinari to plan]
machinations npl of the substantial evidence test. Judges know this stuff, and their eyes glaze over glaze over
to become dull through boredom or inattention: the listener's eyes glaze over
Verb 1. when they see it. A recitation of these principles is likely to be much more effective if you first identify the factual findings that the agency made, then set forth the evidence that supports those findings, and then use the well-settled substantial evidence principles to drive home the point that the agency's findings cannot be second-guessed on appeal. Similarly, a discussion of the statutory scheme or facts that underlie the issue on appeal will have significantly more meaning if you first tell readers how the statutes or facts fit into the argument.
Consider how the following introductory paragraphs of a brief incorporate this approach in setting up a discussion addressing a substantial evidence issue:
The Board committed no error in disciplining a physician who sexually harassed co-workers and engaged in other immoral and unprofessional conduct while on duty in a hospital. As the Board found, the conduct that Dr. Banks engaged in had a profound and undisputed impact on the hospital environment that adversely affected patient care because of the deleterious effect his conduct had on his working relationships with others. Indeed, one of the witnesses in this case gave stark testimony on this precise point, stating that she would physically leave her work area when Dr. Banks would "put his hands through my hair, or rub or caress the parts of my shoulder/neck area. I would just get up and move away because I didn't want to cause any trouble and I just would avoid the situation." (E. 22-23.) As this witness explained, as a result of being subjected to Dr. Banks's actions on two prior occasions, "when he came over after that, I tried to avoid being around when he was doing his job at the nurses' station." (App. 27.) These facts and other substantial evidence discussed earlier in this brief amply support the Board's determination that Dr. Banks's conduct sufficiently implicated the practice of medicine to fall within [section] 14-404(a)(3). The Court of Special Appeals nevertheless accorded no deference at all to that determination, stating instead that "[b]ecause an agency's finding that a physician's immoral or unprofessional conduct occurred in the practice of medicine is an application of law to facts, see Ramsay, Scarlett & Co. v. Comptroller, 302 Md. 825, 834-39 (1985), we may substitute our own judgment for that of the agency as to the legal issue." (App. 11.) The intermediate appellate court misread Ramsay, Scarlett both in applying a de novo review standard to the Board's decision and in substituting its own judgment that Dr. Banks could not be disciplined for the actions he took against Witnesses #1 and #3 because he was not diagnosing, caring for, or treating a specific patient when he sexually harassed those individuals. The de novo review standard that the court below used is inapplicable here because "this is not a case, as found by the Court of Special Appeals in substituting its judgment on the law for that of the agency, where the [agency's] factual findings supported by substantial evidence were susceptible of only one legal conclusion.... "Ramsay, Scarlett, 302 Md. at 839. Rather, the Board's determination that Dr. Banks's acts affected patient care and the actual practice of medicine within the meaning of [section] 14-404(a)(3) is "not solely a question of law," 302 Md. at 838, but is instead a mixed question of fact and law. The Court of Special Appeals erred in casting aside the Board's determination of that question because, "contrary to the view taken by the intermediate appellate court.... agency expertise was involved in the determination...." Id.
Introducing readers first to unfamiliar information--the specific issue before the court--invites them to start thinking about the case right away and to begin processing that information along with the familiar substantial evidence principles that follow. This approach fosters an appreciation of the applicable legal principles that would not exist had the brief commenced with the general before getting to the specifics.
Principle 29: Use Principle 27 together with IRAC--Issue, Rule, Application, Conclusion.
Beginning the argument using the formula set forth above in Principle 27 sets up the rest of the brief by establishing the theme that the writer is to follow as the argument is developed. This approach forces the writer to focus on the logical progression of each of the argument's components and to edit out ed·it
tr.v. ed·it·ed, ed·it·ing, ed·its
a. To prepare (written material) for publication or presentation, as by correcting, revising, or adapting.
b. premature pre·ma·ture
1. Occurring or developing before the usual or expected time.
2. Born after a gestation period of less than the normal time, especially, in human infants, after a period of less than 37 weeks. or even immaterial Not essential or necessary; not important or pertinent; not decisive; of no substantial consequence; without weight; of no material significance.
immaterial adj. digressions. For example, by first articulating the theme that the court below reached a result that is at odds with the plain language of a statute and is inconsistent Reciprocally contradictory or repugnant.
Things are said to be inconsistent when they are contrary to each other to the extent that one implies the negation of the other. with the statute's legislative history, the writer sets himself up to discuss these two points in that order. Moreover, the attentive at·ten·tive
1. Giving care or attention; watchful: attentive to detail.
2. Marked by or offering devoted and assiduous attention to the pleasure or comfort of others. writer should then be able to recognize and reorganize re·or·gan·ize
v. re·or·gan·ized, re·or·gan·iz·ing, re·or·gan·iz·es
To organize again or anew.
To undergo or effect changes in organization. a draft that had haphazardly mixed the two points together.
In developing the argument, remember IRAC--Issue, Rule, Application, Conclusion. The introductory paragraph(s) of the argument will identify the issue. The argument should then set forth and fully develop the law that applies in the case, apply that law to the facts, and set forth the reasons supporting the conclusion being advocated. This approach acts as an additional check on the brief's organization by ensuring that sub-issues are discussed one at a time. The IRAC IRAC Infrared Array Camera
IRAC Interdepartment Radio Advisory Committee
IRAC Issue, Rule, Application, Conclusion (legal writing)
IRAC Indochina Refugee Action Center
IRAC Interim Rapid Action Change approach also minimizes the likelihood that the writer will discuss a case, apply the law in that case to the facts in the case on appeal, then discuss another case, and apply that case to the facts at issue on appeal. Although such a format is frequently used, it is ineffective because it is repetitive and because it prevents the argument from advancing in a forward direction.
Look at how the following excerpt ex·cerpt
A passage or segment taken from a longer work, such as a literary or musical composition, a document, or a film.
tr.v. ex·cerpt·ed, ex·cerpt·ing, ex·cerpts
1. from the brief of petitioner Autos, Inc., implements the IRAC technique to argue that the district court had no jurisdiction to strike Autos, Inc.'s request for a jury trial. The excerpt consists of an entire argument that is admittedly lengthy for the purpose of a brief-writing manual, but that is actually succinct for the purpose of an appellate brief.
The district court erred in granting the Department's motion to strike because, under Md. Cts. & Jud. Proc. Code Ann. [section] 4-402(e)(2) (1995 Repl. Vol.), Autos, Inc.'s request for a jury trial divested the court of jurisdiction over this case. The district court apparently determined that it retained jurisdiction because [section] 4-402(e)(2) divests the district court of jurisdiction only when "a party is entitled to" a jury trial, and, as the Department's motion to strike asserted, Autos, Inc. waived such a right in its lease with the Department. This Court's decision in Vogel v. Grant, 300 Md. 690 (1984), makes clear, however, that the circuit court (1) had exclusive jurisdiction to decide whether Autos, Inc. waived its jury trial request and (2) improperly refused to exercise jurisdiction over this case because of the purported unappealable nature of the district court's order. The plaintiffs in that case asserted, as does Autos, Inc. here, that they were entitled to a jury trial because their claim exceeded the jurisdictional amount set forth in [section] 4-402. The defendant in Vogel filed a motion to strike the plaintiffs' jury trial demand, contending, as did the Department in this case, that the plaintiffs waived it. Similar to the actions taken by the courts below, the district court in Vogel ordered the jury trial demand stricken, and the circuit court refused to exercise jurisdiction over the case, finding instead that the plaintiffs noted an untimely appeal from the order striking the demand. This Court reversed, holding that the district court had no jurisdiction to decide the defendant's motion to strike, because the plaintiffs' jury trial demand vested jurisdiction exclusively in the circuit court: [A]s the statute and cases make clear, when a party has a right to a jury trial and files a demand, jurisdiction over the case is immediately vested in the circuit court. If another party believes that there was a procedural defect, which results in a waiver of the jury trial right, or which otherwise should deprive the demandant of a jury trial, his recourse is to file a motion in the circuit court. 300 Md. at 697-98 (emphasis in original). Vogel thus confirms that "as long as it is the type of case to which the jury trial right attaches and a jury trial is demanded, it is normally the circuit courts, and not the District Court, which have jurisdiction over a motion opposing a jury trial." Id. at 698. This case presents no exception to this rule. Like the defendant in Vogel, the Department of General Services has never questioned Autos, Inc.'s statutory entitlement to a jury trial. On the contrary, there is "no doubt that, in the present case, the value of" Autos, Inc.'s "right to possession exceeds" the jurisdictional amount set forth in [section] 4-402(e)(1). See Carroll v. Housing Opportunities Commn., 306 Md. at 527; see also id. at 522 (stating that a "`claim that the value of the right to possession exceeds' the jurisdictional amount entitles a party to a jury trial") (quotation and citation omitted) (emphasis in original). It is undisputed, therefore, that Autos, Inc. has a right to a jury trial under [section] 4-402. Rather than challenge Autos, Inc.'s jury trial right, the Department instead argued in the district court below only that Autos, Inc. waived that right in its lease. That argument is indistinguishable from the waiver argument that the defendant in Vogel made in challenging the plaintiffs' right to a jury trial. As this Court held in Vogel, however, "it is clear that the District Court had no jurisdiction to entertain the motion to strike the demand for a jury trial," 300 Md. at 699, because "[t]he motion to strike was not based upon the theory that there was no right to a jury trial in the case." Id. Accordingly, "[o]nce the ... demand for a jury trial was filed, the District Court lost jurisdiction over this case ... and the Circuit Court acquired jurisdiction." Id. at 699-700 (footnote omitted). The circuit court should not have dismissed Autos, Inc.'s appeal, therefore, from the district court's order striking its jury trial demand. Where, as here, "jurisdiction is actually in the circuit court because there was a right to and demand for a jury trial, the matter can be immediately corrected by the circuit court." Vogel, 300 Md. at 699-700 n. 9. "Consequently, the circuit court erred in refusing to decide whether the District Court had jurisdiction to try this case after the demand for a jury trial." Kawamura v. State, 299 Md. 276, 285 (1984) (footnote omitted). This case accordingly should be remanded to the circuit court for further proceedings.
After first providing an overview of why the circuit court was wrong, the writer then uses a case as a means of discussing the rule that controls the outcome of the case--that a jury trial request divests the district court of jurisdiction. Following that discussion, the brief applies that rule in two ways: first, by establishing that, under the facts in the case, Autos, Inc. has a jury trial right; and second, by using an argument that the other side raises to confirm the applicability of the rule to the case. The brief then wraps up the discussion with a paragraph concluding that the circuit court erred in dismissing Autos, Inc.'s appeal.
Principle 30: Advocate your case, not general propositions.
Your argument is likely to be more effective if it begins by advocating your case as opposed to discussing a general legal proposition. Contrast the following two introductory sentences of an argument from Autos, Inc.'s brief:
Example 1 Under well-established Maryland law, a demand for a jury trial divests the district court of jurisdiction and automatically vests jurisdiction in the circuit court. Example 2 The circuit court erroneously dismissed Autos, Inc.'s appeal because, under well-established Maryland law, a demand for a jury trial divests the district court of jurisdiction and automatically vests jurisdiction in the circuit court.
The first example is not bad, but it wastes time, and worse, sets up the writer for a general discussion of the "well-established law" that relates to jury trial demands and district court jurisdiction. A brief will be more effective if it avoids the abstract and sticks to a discussion of the case before the court. The second example sidesteps the potential problem that the first example sets up by cutting right to the chase and by forcing the writer to produce a follow-up follow-up,
n the process of monitoring the progress of a patient after a period of active treatment.
follow-up plan sentence that expands on what one of the brief's themes should be--the circuit court's error in dismissing Autos, Inc.'s appeal.
Principle 31: Use topic sentences that move the argument forward.
The best way to keep a judge's interest is to advance the argument in a forward direction. To avoid stagnation Stagnation
A period of little or no growth in the economy. Economic growth of less than 2-3% is considered stagnation. Sometimes used to describe low trading volume or inactive trading in securities.
A good example of stagnation was the U.S. economy in the 1970s. that may lose the judge's attention, try to structure the beginning sentence of each paragraph in a manner that propels the discussion toward the ultimate goal of persuasion PERSUASION. The act of influencing by expostulation or request. While the persuasion is confined within those limits which leave the mind free, it may be used to induce another to make his will, or even to make it in his own favor; but if such persuasion should so far operate on the mind . Consider the following examples from the appellee's brief:
Example 1 Montgomery County claims that it has a right to intervene on the basis that the circuit court will define the parameters of an adequate system of education throughout the state. There is no merit in this argument. Example 2 There is no merit in Montgomery County's claim that it has a right to intervene on the basis that the circuit court will define the parameters of an adequate system of education throughout the state.
In the first example, the reader has to wait until the second sentence before being told the writer's position on Montgomery Montgomery, city, United States
Montgomery, city (1990 pop. 187,106), state capital and seat of Montgomery co., E central Ala., near the head of navigation on the Alabama River just below the confluence of the Coosa and Tallapoosa rivers, and in the rich County's claims. The second example informs the reader immediately of the writer's view and discusses the reasons why Montgomery County's claims lack merit. The second example is also more effective because it does not start out by reiterating the position of the opponent, Montgomery County Montgomery County may refer to:
Principle 32: Give context to paragraphs by telling readers where you are going.
Be conscious of paragraphs that stand alone and have no seeming connection to the information immediately set forth in the surrounding paragraphs. When structuring paragraphs, ask yourself the following types of questions:
Does the beginning of a paragraph identify the issue to be discussed? Does the point you are making about the issue appear either at the end of the paragraph (that is, after the discussion of the issue) or just before the discussion begins? If the paragraph is simply a narrative without an express point, does the beginning of the paragraph alert the reader to that purpose?
Stated differently, make sure judges see why your paragraph is worth reading. Armstrong and Terrell offer questions that you should ask continually con·tin·u·al
1. Recurring regularly or frequently: the continual need to pay the mortgage.
2. throughout your development of the argument:
At the start of each argument, each part of an argument, and each chunk of information that goes into an argument, give readers advance information about what they will read. Why is it relevant? What is its structure? Where will it lead? In other words, make your readers smart. This will reduce the time and effort they need to put into reading and increase the chances they will understand, remember, and be persuaded by your arguments. If you refuse them this help, they may move through your prose with no more speed and comprehension than a person walking backwards down a twisting road. (26)
Principle 33: Use headings and subheadings to organize and provide context for the argument.
Headings and subheadings are excellent tools for structuring the organization of the argument and for telling the reader what to expect. These devices consist of complete sentences that capture the theme of the discussion to which they pertain per·tain
intr.v. per·tained, per·tain·ing, per·tains
1. To have reference; relate: evidence that pertains to the accident.
2. . A good heading advocates your position and goes beyond merely reciting the subject matter of the argument. Consider the following examples:
Example 1 Contrast The district court properly exercised its jurisdiction in striking the jury demand. with The district court properly exercised its jurisdiction in striking the jury demand because Autos, Inc. waived and thus was not entitled to a jury trial. Example 2 Contrast The circuit court correctly dismissed Autos, Inc.'s appeal of the district court's order striking the jury demand. with The circuit court correctly dismissed Autos, Inc.'s appeal of the district court's order striking the jury demand because that order was an unappealable interlocutory order.
The first heading in each of these examples tells the reader very little about the case and so is not nearly as effective as the second heading in each example. A heading should also complement, rather than repeat, the question presented by stating the theme of the case in different language. Therefore, to maximize the persuasive value of the brief, do not make verbatim ver·ba·tim
Using exactly the same words; corresponding word for word: a verbatim report of the conversation.
adv. statements of the questions presented in the brief's headings.
Principle 34: An argument that consists of separate issues should have a separate heading for each.
Briefs that contain independent issues should include a heading for each. Subheadings are warranted when the argument made in support of each of those separate issues consists of sub-arguments and reaches a length that threatens to lose the reader's interest. As a general rule, subheadings are useful when the contents of an argument are greater than five to seven pages in length.
Principle 35: As a general rule, develop your position before advancing any rebuttal rebuttal n. evidence introduced to counter, disprove or contradict the opposition's evidence or a presumption, or responsive legal argument. argument.
The development of the argument should also be structured with an eye toward another generally applicable formula: Make your argument before responding to points that the other side asserts. Lawyers often feel the need to respond right away to some outrageous contention that opposing counsel raised. Brief writers also frequently get sucked into the other side's argument by setting up a counter-argument that simply reacts to points made by opposing counsel. These approaches result in a disjointed product lacking a coherent A version of Unix developed by Mark Williams Co., Northbrook, IL, that was noted for its conservative use of resources on Intel-based PCs. theme, and worse, highlighting the opponent's position rather than the writer's own. Accordingly, "you need to create an organization based on your own logic, rather than letting your analysis emerge (often awkwardly) on the rebound rebound (rē´bownd),
n/v 1. a recovery from illness.
n 2. an outbreak of fresh reflex activity after withdrawal of a stimulus
rebound adjective from an organization forced on you by your opponent." (27) As a general rule, therefore, try to avoid the temptation to blast the other side until after your position has been fully developed.
As with all rules, however, this one has its qualifications and exceptions. First, applying this rule does not mean that you should postpone post·pone
tr.v. post·poned, post·pon·ing, post·pones
1. To delay until a future time; put off. See Synonyms at defer1.
2. To place after in importance; subordinate. any and all discussion of what the other side says until you have presented your argument. In fact, when you write an appellee's or respondent's brief, home in on the specific (purported pur·port·ed
Assumed to be such; supposed: the purported author of the story.
pur·ported·ly adv. ) errors that the other side has identified; otherwise, your briefs will appear as two ships Two Ships is a single by the folk duet, The Sallyangie, released in 1969. Track listing
Pointing to what it calls "a major doctrinal error by the District Court" in treating the registration fee at issue here as a "user fee" and applying a purportedly more relaxed standard to Maryland's law, Br. at 19, CAS asserts that "this fee structure must stand or fall according to whether it satisfies the test outlined by the Supreme Court in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977), which the District Court did not even mention." Br. at 20. The district court did not refer to the Complete Auto Transit test because that test does not apply to fees such as those under attack in this case that are imposed to reimburse the State for the costs it incurs in policing conduct to protect the public. Rather, as the Supreme Court has recognized, a State may regulate commerce to protect local interests and impose fees to offset its regulatory costs if the fees are neither discriminatory nor excessive in relation to those costs, and reflect a fair approximation of the State's expenses in administering and policing its regulations. See [citation]. The court below committed no error--fundamental or otherwise--in applying these principles and finding that the challenged fee results in no violation of the Commerce Clause.
Second, the general rule discussed above does not mean that you should ignore everything that the other side or the lower court says until you reach the end of your brief--if an argument consists of several sub-arguments, you should make sub-argument A, then address the other side's response with respect to that argument, and then proceed with your sub-argument B. For example, if your global argument is that the decision below is supported by both a statute's plain language and its legislative history, give the reasons supporting the plain language aspect of this argument, then respond to any opposing points on this sub-issue, then make your legislative history argument, and then refute re·fute
tr.v. re·fut·ed, re·fut·ing, re·futes
1. To prove to be false or erroneous; overthrow by argument or proof: refute testimony.
2. the counter-arguments on this point.
Third, while you should avoid allowing the format and structure of your brief to be dictated dic·tate
v. dic·tat·ed, dic·tat·ing, dic·tates
1. To say or read aloud to be recorded or written by another: dictate a letter.
a. by the other side or by the lower court's opinion, you can use specific points that they raise as transitional devices for advancing your argument and expanding your analysis. The example for Principle 29 above illustrates how this can be done.
Principle 36: Advance your position even when writing a reply brief.
Even when you are writing a reply brief, avoid a point-counterpoint approach. Instead, use your theme to respond to those contentions, as illustrated below:
In claiming that a circuit court judge's revisory authority constitutes a "personal right" that can be exercised with respect to that judge's final decisions only, Br. at 14, Ms. Nechay's brief confuses fundamental principles of judicial power and court jurisdiction, and as a result advocates a rule that has utterly no jurisprudential support. Ms. Nechay does not dispute that the June 6, 1995 hearing before Judge Hubbard took place within 30 days of the time Judge Ward's order was docketed. It is undisputed, therefore, that under Md. Cts. & Jud. Proc. Code Ann. [section] 6-408 (1995 Repl. Vol.) and Maryland Rule 2-535(a), the Circuit Court for Baltimore City continued to have jurisdiction over this case when the parties appeared before Judge Hubbard. Ms. Nechay concedes as much, as she acknowledges that, at that time, "Judge Ward could have revised the order himself." Br. at 12-13. The circuit court did not suddenly lose either its jurisdiction or its power to grant relief in this case simply because a judge other than Judge Ward exercised the court's authority.
As this example shows, the reply brief should use what the other side has said in an affirmative AFFIRMATIVE. Averring a fact to be true; that which is opposed to negative. (q.v.)
2. It is a general rule of evidence that the affirmative of the issue must be proved. Bull. N. P. 298 ; Peake, Ev. 2.
3. manner that advances the reply brief writer's theme. In following this principle, however, be conscious of the reply brief's central goal, to respond to the other side's argument. While the reply brief should refrain from adopting a they-say/we-say format, neither should it be a mere regurgitation regurgitation /re·gur·gi·ta·tion/ (re-ger?ji-ta´shun)
1. flow in the opposite direction from normal.
2. vomiting. of the same points advanced in the principal brief. The opposing brief may not dispute some of those points, and it may ignore or mischaracterize mis·char·ac·ter·ize
tr.v. mis·char·ac·ter·ized, mis·char·ac·ter·iz·ing, mis·char·ac·ter·iz·es
To give a false or misleading character to: mischaracterized the findings of the study. others. Your job is to bring these matters to the Court's attention in a way that convinces it to uphold up·hold
tr.v. up·held , up·hold·ing, up·holds
1. To hold aloft; raise: upheld the banner proudly.
2. To prevent from falling or sinking; support.
3. the position you advocate.
Principle 37: Give context to the cases you cite so the court will understand their relevance.
The late Maryland Chief Judge Robert Murphy There are several notable personalities named Robert Murphy or Bob Murphy:
Both the statute and the case law make clear that the transfer of jurisdiction occurs "forthwith," i.e., automatically and instantaneously upon the filing of a proper jury demand. The district court does not retain jurisdiction, therefore, to decide issues of a possible waiver of the right to jury trial. For example, in Vogel, the district court granted a motion to strike a jury demand on the ground that the party making the demand had waived the right to jury trial because of procedural defects in the demand. The Court of Appeals reversed, holding that the district court, having lost jurisdiction upon the filing of the jury demand, lacked the power to consider the waiver argument. Any waiver argument, the Court held, should have been made in the circuit court, where jurisdiction had been transferred by operation of law: "If another party believes that there was a procedural defect, which results in a waiver of the jury trial right, or which otherwise should deprive the demandant of a jury trial, his recourse is to file a motion in the circuit court." Id. at 697-98 (emphasis in original). If, in fact, there has been a waiver or procedural default, the circuit court can then remand the case to district court. Id. at 698. Thus, in light of Vogel, the district court has no power to adjudicate issues of a waiver of a jury trial. The only inquiry for the district court in deciding whether a party is "entitled to" a jury trial within the meaning of section 402(e)(2) is the narrow question whether the case is the "type of case to which a jury trial attaches." Id. at 698.
As this excerpt shows, a case can be used to propel pro·pel
tr.v. pro·pelled, pro·pel·ling, pro·pels
To cause to move forward or onward. See Synonyms at push.
[Middle English propellen, from Latin the discussion forward when it is part of the discussion. Cases lose their effectiveness, however, when the reader has not been adequately prepared to understand their significance. A case-by-case Adj. 1. case-by-case - separate and distinct from others of the same kind; "mark the individual pages"; "on a case-by-case basis"
item-by-item, individual discussion, for example, does little other than impress upon the reader how well (or not so well) the writer can describe them. As the following examples show, using cases is much more effective if you first give the reader a sense of how the cases fit into the argument:
Example 1 In Radiological Socy. of N.J. v. New Jersey State Dept. of Health, 506 A.2d 755 (N.J. App.), cert. denied, 517 A.2d 434 (N.J. 1986), a regulation provided that.... The court held.... Similarly, in Bendix Forest Products Corp. v. Division of Occupational Safety & Health, 600 P.2d 1339, the regulation at issue stated that.... The Supreme Court of California held that a state agency did not engage in rulemaking when it.... Example 2 The decision below is in conflict with the decisions of a number of courts from other jurisdictions that have addressed regulatory action similar to that at issue here, and that have held that it is not necessary to proceed by rulemaking to take such action. For example, in Radiological Socy. of N.J. v. New Jersey State Dept. of Health, 506 A.2d 755 (N.J. App.), cert. denied, 517 A.2d 434 (N.J. 1986), a regulation provided that.... The court held.... Similarly, in Bendix Forest Products Corp. v. Division of Occupational Safety & Health, 600 P.2d 1339, the regulation at issue stated that.... The Supreme Court of California held that a state agency did not engage in rulemaking when it....
The first example just plunges into a discussion of the first two cases without providing any notice to the reader as to why these cases are significant or what point they support. As these contrasting examples illustrate, you can use cases to advance the discussion; do not make their mere descriptions the sole feature of the discussion.
Principle 38: Use parentheticals to explain the significance of the cases you cite.
Briefs that resort to string citations A series of references to cases that establish legal precedents and to other authorities that appear one after another and are printed following a legal assertion or conclusion as supportive authority. may show off research skills, but they do not accomplish much more. Consider how a simple explanatory ex·plan·a·to·ry
Serving or intended to explain: an explanatory paragraph.
ex·plan parenthetical can change the effectiveness of a case citation
Example 1 Numerous other jurisdictions have also reached the same result in the cases discussed above. See e.g. Sentara-Hampton Gen. Hosp. v. Sullivan, 980 F.2d 749, 759 (D.C. Cir. 1992);.... Example 2 Numerous other jurisdictions have also reached the same result in the cases discussed above. See e.g. Sentara-Hampton Gen. Hosp. v. Sullivan, 980 F.2d 749, 759 (D.C. Cir. 1992) (rulemaking is not required when the challenged agency does not "substantively change existing rights and duties");....
Principle 39: Use cases to support propositions.
While parentheticals have their value, consider how much more effective the case from Example 2 above becomes by removing the information from the parenthetical, placing it in text, and using the case to advance the argument:
Numerous other jurisdictions have also reached the same result in the cases discussed above, and have held that rulemaking is not required when the challenged agency does not "substantively change existing rights and duties." Sentara-Hampton Gen. Hosp. v. Sullivan, 980 F.2d 749, 759 (D.C. Cir. 1992). See also....
You should also consider whether it is necessary to use introductory phrases as "The Court of Special Appeals held that ... " when it is just as easy to use the quotation QUOTATION, practice. The allegation of some authority or case, or passage of some law, in support of a position which it is desired to establish.
2. Quotations when properly made, assist the reader, but when misplaced, they are inconvenient. or to state the proposition directly, followed by the citation.
Principle 40: Discuss material facts from other cases sparingly spar·ing
1. Given to or marked by prudence and restraint in the use of material resources.
2. Deficient or limited in quantity, fullness, or extent.
3. Forbearing; lenient. .
Avoid a lengthy explanation of the facts of a case. A protracted pro·tract
tr.v. pro·tract·ed, pro·tract·ing, pro·tracts
1. To draw out or lengthen in time; prolong: disputants who needlessly protracted the negotiations.
2. discussion of another case's facts interferes substantially with the flow of your argument because it has the unintended effect of completely redirecting the court's focus away from the facts and issues in your case. This is not what you want when you are attempting to persuade the court to resolve the appeal in favor of upon the side of; favorable to; for the advantage of.
See also: favor your client. Judges know how to read cases. Good advocacy focuses on the key portions of a relevant case and articulates, generally in no more than a few sentences, the reasons why that case is relevant and compels the result you are asking the court to reach.
Qualification: Sometimes it may be appropriate to discuss a state supreme court decision at length in an intermediate state court appellate brief when, in your view, that case is directly on point and controls the outcome of your case. Exercise care, however, in determining how "on point" the decision is.
Principle 41: Be brief in distinguishing cases that the other side cites.
As a general rule, cases cited against you should be disposed of as succinctly as possible. "Elaborate analysis and rebuttal of every case cited in an opponent's brief, or too lengthy or too numerous references to his principal cases, may show over-concern about their importance. One should dispose of dis·pose
v. dis·posed, dis·pos·ing, dis·pos·es
1. To place or set in a particular order; arrange.
2. them as ably and as pungently pun·gent
1. Affecting the organs of taste or smell with a sharp acrid sensation.
a. Penetrating, biting, or caustic: pungent satire.
b. as one can--and move on." (29) Sometimes a summary dismissal A discharge of an individual or corporation from employment. The disposition of a civil or criminal proceeding or a claim or charge made therein by a court order without a trial or prior to its completion which, in effect, is a denial of the relief sought by the commencement of the of such cases can be very effective, i.e., "Jones misplaces his authority on cases such as ... because none of those cases involves the issue presented here of whether.... Indeed, in Smith v. Birmingham Birmingham, cities, United States
1 City (1990 pop. 265,968), seat of Jefferson co., N central Ala., in the Jones Valley near the southern end of the Appalachian system; founded and inc. , 8 F.3d 100, 109 (14th Cir. 1995), the court of appeals specifically refused to address this issue. Similarly, in.... "
The point is to avoid, whenever possible, spending too much time discussing your opponent's authority.
Principle 42: Carefully scrutinize scru·ti·nize
tr.v. scru·ti·nized, scru·ti·niz·ing, scru·ti·niz·es
To examine or observe with great care; inspect critically.
scru the use of footnotes.
As one federal appellate court judge says, "Generally speaking, if the matter is important enough to communicate to the appellate court, put it in the text. If it's it's
1. Contraction of it is.
2. Contraction of it has. See Usage Note at its.
it's it is or it has
it's be ~have not important enough for the text, ... then it has no place in the brief." (30) Footnotes are counterproductive coun·ter·pro·duc·tive
Tending to hinder rather than serve one's purpose: "Violation of the court order would be counterproductive" Philip H. Lee. in at least two ways. They are, by nature, an abrupt distraction Distraction
Divination (See OMEN.)
a “person from Porlock” interrupted Coleridge while he was recollecting the dream on which he based “Kubla Khan”. [Br. Lit.: Poems of Coleridge in Magill IV, 756] from the textual tex·tu·al
Of, relating to, or conforming to a text.
textu·al·ly adv. flow of argument. They are also like a home for wayward way·ward
1. Given to or marked by willful, often perverse deviation from what is desired, expected, or required in order to gratify one's own impulses or inclinations. See Synonyms at unruly.
2. ideas--who among us has not thought, "I'm I'm
Contraction of I am.
Our Living Language Speakers of some scattered varieties of American English sometimes use I'm instead of I've or I have in present perfect constructions, as in not sure where this belongs, so I'll I'll
Contraction of I will.
I'll I will or I shall
I'll will ~shall just put it in a footnote Text that appears at the bottom of a page that adds explanation. It is often used to give credit to the source of information. When accumulated and printed at the end of a document, they are called "endnotes." "?
Even so, footnotes can fulfill ful·fill also ful·fil
tr.v. ful·filled, ful·fill·ing, ful·fills also ful·fils
1. To bring into actuality; effect: fulfilled their promises.
2. a legitimate purpose. They are a good place either for case citations that stand for the same proposition or for lengthy text from statutes or regulations. It may also be useful to include in a footnote an argument that the other side has not made but that the court is likely to address at oral argument. The bottom line is that if you are uncertain about where an idea should go in a brief, think twice and then again before packing that thought off to "footnote land."
Principle 43: Keep the subject and verb verb, part of speech typically used to indicate an action. English verbs are inflected for person, number, tense and partially for mood; compound verbs formed with auxiliaries (e.g., be, can, have, do, will) provide a distinction of voice. close together.
This guideline guideline Medtalk A series of recommendations by a body of experts in a particular discipline. See Cancer screening guidelines, Cardiac profile guidelines, Gatekeeper guidelines, Harvard guidelines, Transfusion guidelines. is easy to follow and makes for a much-improved sentence, as the following examples illustrate:
Example 1 The district court's reliance on the jury trial waiver provision to strike Autos, Inc.'s request for a jury trial was wrong. Example 2 The district court was wrong to rely on the jury trial waiver provision to strike Autos, Inc.'s request for a jury trial.
The first example does not flow as well as the second, because the subject, "the district court's reliance," is so far removed from the predicate In programming, a statement that evaluates an expression and provides a true or false answer based on the condition of the data. , "was wrong." The modest revision made in the second example redefines the subject, places it next to the verb, and results in a much more readable read·a·ble
1. Easily read; legible: a readable typeface.
2. Pleasurable or interesting to read: a readable story. and effective sentence.
Principle 44: Avoid using lengthy quotations, whether from cases, statutes, or other sources.
As one judge notes, long quotations "are difficult to read and suggest you were too lazy to extract the truly relevant material." (31) In part, lengthy quotations are hard to read because they are single-spaced sin·gle-space
v. sin·gle-spaced, sin·gle-spac·ing, sin·gle-spac·es
To type, print, or format (copy) without leaving a blank line between lines.
v.intr. . Consider paraphrasing the material in your own words (which as part of the regular text of the argument are double-spaced dou·ble-space
intr. & tr.v. dou·ble-spaced, dou·ble-spac·ing, dou·ble-spac·es
To type or format so that there is a full space between lines.
Adj. 1. ). Another suggestion is to break up the long quotation into smaller portions that are linked by a narrative discussion. When following the latter technique, however, you should precede each quotation with an explanation telling readers why they should be interested in something that someone else wrote. The following examples illustrate how you can improve such introductions:
Example 1 The Supreme Court in Imbler v. Pachtman, 424 U.S. 409, 422-23 (1976), stated: The common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties. These include concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust. Example 2 Making a similar comparison between judges and prosecutors, the Supreme Court in Imbler v. Pachtman, 424 U.S. 409, 422-23 (1976), stated that absolute immunity is essential to a prosecutor's ability to perform his or her job properly: The common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties. These include concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.
The first example just uses the quotation without giving the reader any sense as to why. The second example is more effective because it notifies the reader of the significance of the quotation.
Principle 45: Sustain your argument with substance, not adjectives.
Bombast and hyperbole hyperbole (hīpûr`bəlē), a figure of speech in which exceptional exaggeration is deliberately used for emphasis rather than deception. do not produce effective advocacy. Once you have vented vent 1
1. A means of escape or release from confinement; an outlet: give vent to one's anger.
2. An opening permitting the escape of fumes, a liquid, a gas, or steam.
3. your spleen spleen, soft, purplish-red organ that lies under the diaphragm on the left side of the abdominal cavity. The spleen acts as a filter against foreign organisms that infect the bloodstream, and also filters out old red blood cells from the bloodstream and decomposes at opposing counsel in a draft, step back as an editor to assess whether your tone is appropriate. In almost every instance, sharp rhetoric is risky and unnecessary. When you write that your opponent's argument is "ludicrous" and "beyond the reach of any reasoning mind," you will have offended of·fend
v. of·fend·ed, of·fend·ing, of·fends
1. To cause displeasure, anger, resentment, or wounded feelings in.
2. the court for no reason if the judge reading your brief has any inclination inclination, in astronomy, the angle of intersection between two planes, one of which is an orbital plane. The inclination of the plane of the moon's orbit is 5°9' with respect to the plane of the ecliptic (the plane of the earth's orbit around the sun). at all toward that conclusion. Similarly, when your position really is compelling, your argument will lead your reader to that conclusion without your providing adjectives like "clearly," "plainly," and "obviously." When your position is not so compelling, don't don't
1. Contraction of do not.
2. Nonstandard Contraction of does not.
A statement of what should not be done: a list of the dos and don'ts. be afraid to say so. You are no less an advocate if you tell the court that an issue presents a close question and then explain the sound reasons why that close call should go to your client.
These points apply to any advocate, but they are especially important to the Attorney General advocating for the State. We are expected to temper tem·per
1. A state of mind or emotions; mood.
2. A tendency to become easily angry or irritable.
3. An outburst of rage. zealous advocacy with the public interest, and the Attorney General has and must preserve a special credibility with the appellate courts.
G. The Conclusion
Principle 46: Do not include substance in the conclusion.
In Maryland, an appellate brief must contain "[a] short conclusion stating the precise relief sought." (32) The operative OPERATIVE. A workman; one employed to perform labor for another.
2. This word is used in the bankrupt law of 19th August, 1841, s. 5, which directs that any person who shall have performed any labor as an operative in the service of any bankrupt shall be words here are "short" and "precise." Many of us, by the time we arrive at this section of the brief, feel the need to summarize arguments and to wrap things up for the court. Don't. The typical conclusion should be, "For the reasons set forth above, this Court should affirm/reverse the decision of the Circuit Court for --." Think about what relief is technically appropriate, and spell out the request for more precise relief if that is necessary, i.e., "For the reasons set forth above, this Court should reverse the decision of the Court of Special Appeals with instructions to remand To send back.
A higher court may remand a case to a lower court so that the lower court will take a certain action ordered by the higher court. A prisoner who is remanded into custody is sent back to prison subsequent to a Preliminary Hearing before a tribunal or magistrate the case to the Office of Administrative Hearings administrative hearing n. a hearing before any governmental agency or before an administrative law judge. Such hearings can range from simple arguments to what amounts to a trial. There is no jury, but the agency or the administrative law judge will make a ruling. for the entry of an order affirming the clinical review panel's decision to administer medication to respondent."
H. Editing the Brief
Principle 47: When you finish writing the draft, let it rest, but then go back to revise and edit To make a change to existing data. See update.
(application) edit - Use of some kind of editor program to modify a document. Also used to refer to the modification itself, e.g. "my last edit only made things worse". .
Even those born clutching a silver pen have to edit. Step back and try to get an objective view of what you have written. Ask a respected colleague, particularly one who has little or no knowledge of your case or the pertinent law, to read your draft and to give feedback. Consider also the following editing suggestions by Armstrong and Terrell:
Ask yourself if the tone, length and approach of the brief is appropriate; Review the brief's organization and the content of its introductory paragraphs; Examine the coherence of the paragraphs and assess whether the transitions between and within the paragraphs are smooth; Scrutinize the clarity of the sentences; Check grammar and punctuation; Proofread. (33)
The goal of Maryland's Civil Appeals Style Manual, as stated previously, is to enhance the quality of the Office's written advocacy in the state and federal appellate courts. Before the Manual was put into use, the quality of briefs ranged from poor to excellent and, in the absence of written standards and guidelines, that quality was affected by the writing experiences, skills, and styles of the respective authors. While all civil appellate briefs filed on behalf of the Office were reviewed--and still are--by the Civil Litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called litigation. Division and invariably in·var·i·a·ble
Not changing or subject to change; constant.
in·vari·a·bil improved as a result of that process, brief review was perceived to have its limits, because it is purely reactive reactive /re·ac·tive/ (re-ak´tiv) characterized by reaction; readily responsive to a stimulus.
1. Tending to be responsive or to react to a stimulus.
2. and structured to confer no benefits until the writer submits the brief for review. The editing that took place during brief review was also considered far more effective in making a poor brief into an adequate brief than it was in transforming an adequate brief into an excellent one.
The influence of the Manual, however, has aided substantially in this latter transformation. Establishing concrete standards and rules has enabled our attorneys to improve the quality of their briefs prior to review, and, thus, reviewers have more time to spend on producing a superior product. The guidelines set forth in the Manual have also enhanced the brief-review process and reduced inconsistent demands during brief review. We have seen an improvement in our briefs since the Manual was written and since it was made the central focus of our continuing brief writing programs. We hope that our experience will benefit others as well.
(1.) At the time this article was written, the program had recently been conducted for the eighth time. All attorneys within the Office of Attorney General must take part in the program as a condition of filing civil appellate briefs.
(2.) Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument [section] 8.11, 141 (NITA NITA National Institute for Trial Advocacy
NITA National Information Technology Agenda (Malaysia)
NITA Naval Intelligence Technical Assessment rev. ed rev.
2. . 1996) (quoting Judge Myron Myron (mī`rən), fl. 5th cent. B.C., Greek sculptor. He is supposed to have been a pupil of Ageladas of Argos, but he worked largely in Athens. Bright, attorney Jordan Jordan, country, Asia
Jordan, officially Hashemite Kingdom of Jordan, kingdom (2005 est. pop. 5,760,000), 35,637 sq mi (92,300 sq km), SW Asia. It borders on Israel and the West Bank in the west, on Syria in the north, on Iraq in the northeast, and on Saudi Cherrick, and Justice Walter Wal·ter , Bruno 1876-1962.
German conductor noted for his interpretations of Mozart and Mahler.
Noun 1. Walter - German conductor (1876-1962)
Bruno Walter Urbigkit, respectively).
(3.) Id. [section] 12.1, at 212.
(4.) Stephen V Stephen V, 1239–72, king of Hungary (1270–72), son and successor of Bela IV. As a child he was named duke of Transylvania, and in 1259 he was made duke of Styria. . Armstrong & Timothy P. Terrell, Thinking Like A Writer: A Lawyer's Guide to Effective Writing and Editing 2-1 (Clark Boardman Boardman may refer to:
British prime minister (1976-1979) who as Chancellor of the Exchequer (1964-1967) introduced controversial tax measures. 1992).
(6.) Id. at 2-2.
(7.) Md. R. 8-504(a)(2) (LEXIS Publg. Supp. 2001).
(8.) Md. R. 8-504(a)(2) (LEXIS Pblg. Supp. 2001).
(9.) Id. 8-504(a)(4).
(10.) Id. 8-504(a)(3).
(11.) Diana Gribbon Motz, Brief Writing And Oral Argument: View From The Bench, in Appellate Practice for the Maryland Lawyer: State and Federal 311 (Paul Paul, 1901–64, king of the Hellenes (1947–64), brother and successor of George II. He married (1938) Princess Frederika of Brunswick. During Paul's reign Greece followed a pro-Western policy, and the Cyprus question was temporarily resolved. Mark Sandier & Andrew D. Levy, eds., Md. Inst. for Continuing Prof. Educ. of Lawyers, Inc. 1994).
(12.) Aldisert, supra A relational DBMS from Cincom Systems, Inc., Cincinnati, OH (www.cincom.com) that runs on IBM mainframes and VAXs. It includes a query language and a program that automates the database design process. n. 2, [section] 8.6, at 119.
(13.) Md. R. 8-504(a)(4).
(14.) Aldisert, supra n. 2, [section] 9.3, at 152.
(15.) Motz, supra n. 11, at 311.
(16.) Armstrong & Terrell, supra n. 4, at 3-22.
(17.) Id. at 3-22 to 3-23.
(18.) Motz, supra n. 11, at 312.
(20.) Md. R. 8-504(a)(4).
(21.) Fed. R. App. P. 28(a)(5).
(22.) Id. 28(a)(8).
(23.) Aldisert, supra n. 2, [section] 10.2, at 177.
(24.) Quoted in Aldisert, supra n. 2, [section] 11.1, at 192.
(25.) Paul Mark Sandler Sandler is the surname of:
(26.) Armstrong & Terrell, supra n. 4, at 3-28.
(27.) Armstrong & Terrell, supra n. 4, at 3-11.
(28.) Quoted in Aldisert, supra n. 2, [section] 11.1, at 192.
(29.) Henry Weihofen, Legal Writing Style 297 (2d ed., West Publg. Co. 1980).
(30.) Aldisert, supra n. 2, [section] 11.4, at 202.
(31.) Motz, supra n. 11, at 313.
(32.) Md. R. 8-504(a)(6).
(33.) Armstrong & Terrell, supra n. 4, at 9-19 to 9-20.
Andrew H. Baida, Solicitor General An officer of the U.S. Justice Department who represents the federal government in cases before the U.S. Supreme Court.
The solicitor general is charged with representing the Executive Branch of the U.S. government in cases before the U.S. Supreme Court. of the State of Maryland.