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Appellate Briefs

State v. Jeremiah R. Connour, 2011AP1489-CR, District 3, 7/31/12

court of appeals decision (not recommended for publication); case activity

¶3 n. 2:

Connour’s thirty-eight-page statement of the case includes primarily verbatim Q & A trial testimony, but nonetheless omits relevant evidence necessary to address his postconviction claims.  Most of the remainder of Connour’s recitation of the “facts” inappropriately consists of several pages of argument.  See Dawson v. Goldammer, 2006 WI App 158, ¶1 n.3, 295 Wis. 2d 728, 722 N.W.2d 106 (a “fact section should objectively recite the historical and procedural facts; it is no place for argument or ‘spin’”).  That is not effective appellate advocacy.

Pretty basic stuff. Just what does constitute effective appellate advocacy might be debatable in any given instance, but there won’t be any dispute that merely excerpting large portions of transcripts falls well short of the goal. “Effective Brief Writing Despite High Volume Practice: Ten Misconceptions that Result in Bad Briefs” makes the point:

Whether you are writing a trial-level or an appellate brief, do not make the facts a sterile recitation of the record. Rather, use the facts section to advance your argument. Pull facts together into a compelling story that helps sell your case40 without overt argument41 and without slanting the facts unfairly.42 Open with a summary of the facts and the core of the brief’s legal theme or theory.43 Emphasize favorable facts by using concrete, easily visualized words and by supplying more detail.44 “To read a story from the client’s perspective, the reader must be able to … sense somehow what the people in the story must have heard, seen, tasted, smelled, felt and believed.”45 Neutralize an unfavorable fact by juxtaposing it “with other facts that explain, counterbalance, or justify it.”46 Use topical (not argumentative) headings to break up a long story into digestible chunks and to focus the narrative.47 Word choice matters. “[W]hat we call something goes a long way toward what or how a reader will think of that thing. For example, do we call the dog that bit the plaintiff a ‘pet,’ a ‘guard dog,’ a ‘Doberman,’ or, simply by its name, ‘Chocolate’?”48

And so on. (The footnotes are worth a look, as well as the authors’ other points. And, yes, there are plenty of excellent brief-writing primers, even if some are a bit pricey.)

And lest we forget, what’s the issue on appeal in this particular case? An ineffective assistance claim, which was “undeveloped” (therefore disregarded) in part, ¶23; “nonsensical” in part, ¶28; but mostly just without merit, ¶¶30-35 – the details won’t be summarized here.

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