博悦彩票

法律英语

2019瑞达法考客观题学习包

考试内容 报名条件 报名时间 报名方法

成绩查询 考试时间 分 数 线 授予资格

您的位置:博悦彩票 > 法律英语 > 涉外文书 > 正文

How to write a good appellant brief(三)

2016-03-07 11:12  来源:   纠错

You can preserve your credibility for formulating the issues on appeal even-handedly; but there is another challenge: You must also make the questions comprehensible. If the judges cannot understand what the case is about from the initial substantive exposure to your writing — a statement they expect to be clear — they may have far less patience with the parts of your brief that may legitimately be complex.

A good brief writer can formulate clear, neutral-sounding questions but frame them in a way that tends (subtly, of course) to suggest the answer the writer seeks. The question should not present your argument, but it should express a clear point of view about the case.

An example from one of our recent cases may demonstrate the distinction. It was an antitrust case. Our opening brief (for the appellants) stated five issues presented and did so in less than half a page. We slightly loaded one of them with what we thought were helpful facts:

Whether defendant can be labeled a “monopolist” under Section 2 of the Sherman Act because it owned the only bowling center in a small area, even though uncontradicted evidence showed that defendant lacked power to exclude competition or control price.

Our adversaries took a different approach. They heavily loaded their issues presented and took five pages of their brief to state them. The first issue presented, according to our adversaries, was:

Was the finding of the jury that [defendant] possessed monopoly power in the Antelope Valley of California (“the relevant market”) supported by substantial evidence when there was evidence (a) that over time [defendant‘s] share of the relevant market increased and, ultimately culminated in [defendant] achieving a 100% share of such market; (b) that two competitors of [defendant] withdrew from, and no competitors entered, the relevant market; (c) that the prices charged by [defendant] for bowling services in the relevant market were higher than those charged by [defendant] in markets where it faced competition; and (d) that because of the limited availability of bowling center and equipment financing, potential competitors confronted a significant barrier to entering the relevant market?

Sometimes these things are a matter of taste. Lawyers might differ over which of these formulations is preferable, and the decision in a case is unlikely to turn on such phrasing variations. We cannot help thinking, however, that judges tire quickly of laboriously reading such detailed Questions Presented and would prefer to see the minutiae elsewhere.

Remember, the Questions Presented section is likely a judge‘s first exposure to your side of the case. It is a place to provide a concise overall view of what is at stake. It is not a place to bury a judge in detail. If judges must wade through facts, the significance of which is not immediately apparent, they may have a hard time grasping what your arguments are about.

Another key to successful appellate litigation (at least for the appellant or petitioner) is to limit the number of questions presented. Here again, there are no universal rules: Two questions presented are sometimes too many and five are sometimes too few. But it is fair to say that judges are more likely to give full attention to fewer issues than to many. An appellate lawyer must resist the temptation (and the pressure from client or trial counsel) to include many issues in the hope that, somehow, lightning will strike one of them. And it is never good advocacy to present two or more questions that simply rephrase what is really a single legal issues.

Sometimes, a succinct introductory sentence or two, or even a succinct paragraph, placed before the questions presented will aid understanding of a complex case. Most courts permit this device, although relatively few advocates use it. Here is an example:

Prior to 1983, the tax code prohibited the compounding of interest on tax deficiencies or on tax overpayments. In section 344 of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), Congress repealed that prohibition and provided for the compounding of all such interest. Section 344(c) of TEFRA directed that these changes would apply to “interest accruing after December 31, 1982.” The question presented is whether section 344(c) authorized the compounding of appellant‘s tax-deficiency interest, which had completely ceased accruing on February 1, 1982.

Elegant prose? Perhaps not. But imagine how much more inelegant it would have been to cram a single sentence with enough subordinate clauses to embrace all of these ideas. The case was technical, as were the issues. The statement of the question presented broke out the main ideas into separate sentences so that the judges could understand more easily what they were being asked to decide.

责任编辑:仪

特别推荐

地图
博悦彩票官方微信

博悦彩票微信公众号向您推荐考试资讯、博悦彩票辅导资料、考试教材、历年真题、博悦彩票常识、法律法规等资讯,只有你想不到,没有我们做不到!详情>>

1、凡本网注明“来源:博悦彩票”的所有作品,版权均属博悦彩票所有,未经本网授权不得转载、链接、转贴或以其他方式使用;已经本网授权的,应在授权范围内使用,且必须注明“来源:博悦彩票”。违反上述声明者,本网将追究其法律责任。

2、本网部分资料为网上搜集转载,均尽力标明作者和出处。对于本网刊载作品涉及版权等问题的,请作者与本网站联系,本网站核实确认后会尽快予以处理。

本网转载之作品,并不意味着认同该作品的观点或真实性。如其他媒体、网站或个人转载使用,请与著作权人联系,并自负法律责任。

3、本网站欢迎积极投稿