September 15, 2025
Brief-Writing 101 for the Busy Trial Lawyer
BY: Matthew R. McGuire and Rachel L. Yates
Writing a great appellate brief is challenging. Whole books by dueling experts have been written on the subject. But most of the advice on brief-writing is primarily geared towards other appellate lawyers. This article aims to help everyone else, and especially the busy trial lawyers who rarely have occasion to write an appellate brief.
We are going to start with the basics, but we’ll throw in a few tips for the experienced practitioner as well.
Step 1: Start with your issues
If you are the appellant, decide what your best issues are. If you are the appellee, decide how you will recharacterize the issues in a way that helps your client.
Why do we do this first? Because of Steps 2 and 3.
Appellants: How do you decide what your best issues are?
- Consider the standard of review. What has de novo review? Are there any mixed questions of law and fact that you can raise as an appellant?
- Consider how certain you are that you are right. Is there a 2 percent chance of winning on this issue? Eighty percent?
- Consider whether any error would be harmless or not.
- How likely is a court to find that the issue was preserved?
- What is the outcome if I win (e.g., a new trial, less damages, a revived counterclaim)?
You will likely have to do some research in order to decide what your best issues are so you know their relative strength/weakness. Pick no more than three! Trust us, less is more.
Appellees: How do you reframe issues as the respondent?
- You can’t change the assignments of error, but you can give the court the context needed to see why those assignments of error are wrong.
- If you won at trial, consider facts that bolster the trial court’s reasoning, even if the trial court itself didn’t cite them.
- Consider whether the appellant has sought complete relief (i.e., will winning on an issue actually give them the outcome they want?).
- Consider whether there is an alternative ground for affirmance presented by the record or if the error is harmless.
Keep in mind that appeals have a different focus: our goal is to identify legal errors and explain how those errors affected the outcome. Don’t attempt to relitigate the facts, but you may use gaps in the record evidence or identify baseless assumptions where appropriate. Because your client will ask—no, they cannot introduce new evidence on appeal or raise new arguments for the first time.
Step 2: Begin Outlining
You can be fancy about it or you can keep it short and sweet. Do what works for you. The point is to be thoughtful.
What is your primary assertion?
- Then list bullet points that support your premise (helpful facts, cases, statutes, etc.).
- What are the weaknesses of your case? What will the other side argue? Be prepared to respond.
Prepare your outline like your table of contents—when a judge picks up your brief, the table of contents should fully explain why you win. Your outline often can become your table of contents.
Use sub-arguments and sub-headings, when helpful. Break your main arguments down into their component parts—if the statute has a four factor test, your outline often should have a sub-heading for each factor to guide the court through the analysis in easy to digest chunks.
Step 3: What Is Your Theme?
Themes are important. Judges are people just like we are and it helps always to have a cohesive theme woven throughout your appeal.
Example theme: "The trial was unfair" OR "Police violated my client's constitutional rights” OR “The agency preordained an outcome and crafted the process to reach the result it wanted.”
The goal is to have a compelling narrative about what happened in the case (or at trial) and why your client wins as a result. Your narrative should anticipate (or respond to) what the other side is going to say to build credibility with the Court and handle any downsides for your case in the way you’d prefer to handle it.
Step 4: Use Templates & Support Staff
Ask support staff to create a template opening Court of Appeals brief or find a word-version of a brief you like (that you filed or from a peer) and use that as a template.
We are not telling you to have a paralegal write your brief. We are suggesting that you could have your assistant set up the formatting, the style of the case, your signature and the certificate of service with opposing counsel's information, etc. Have your assistant insert the Preliminary Statement of Assignments of Error in the section of the brief called "Assignments of Error."
You want to do everything possible to streamline this process. If your support staff can set up a basic format for you, it will save you time and energy in the long run.
Pro tip: Create “Styles” in Word that match your heading formats. This will enable rapid creation of TOC.
Step 5: Begin Drafting Your Statement of Facts
You only begin writing your statement of facts after you've decided what your issues are for two reasons: (1) because you only want to include relevant facts; and (2) because you want to incorporate your theme.
Consider how your statement of facts will flow. You do not need to write a chronological summary of which witness testified when. You do need to include relevant facts. You don't need to include everything that happened—only the parts that relate to your issues. Tell a story as if you were brand new to the case and how you think it would make the most sense with the most persuasive value. The story need not follow the order of the trial.
Be ruthless in cutting down the immaterial facts—there are limited ways appellate courts interact with the facts, and you want them to focus on only what matters in your case.
For instance, if your appeal is about the sufficiency of the evidence, you may not need to dedicate a significant portion of your brief to the motion to suppress hearing. If your case involves an administrative agency decision on point A, don’t spend much time explaining what the agency did with point B even if it’s all in the same regulation or admin ruling.
If the trial court found facts in your favor, rely on those.
The facts are viewed in the light most favorable to the appellee
If you are the appellant, write the facts in the light most favorable to the other side. Warn your client in advance that this is a requirement so they are not taken by surprise.
Own the worst version of your facts—it sets the stage for the Court and you get to control how the play starts. If you avoid the problems, the other side will raise them (or the court will read the trial court decision) and now your argument is immediately perceived as weak.
Citations
Pro tip: Cite to the record as you go. For instance, add "R. 52" as you write rather than waiting until the end to fill in citations. Be careful about relying on memory—sometimes things don't make their way into the record in the same way that we think they should have been. Because you can only cite to the record, be scrupulous about having a citation for every fact.
It’s very hard to find cites at the end, and you lose credibility with the court if they can’t readily use your citations to identify the key facts.
Step 6: Argument Section
Introduction to argument section:
Aim for a page if possible, two at the most. Some attorneys save writing the introduction and conclusion until the end, once your argument section is otherwise fully fleshed out. Others do it at the outset as a form of outlining. Do what works for you.
Standard of Review
Do this at the outset. It will help orient you to what you need to overcome to win. Try to avoid simply including huge block quotes. Do your best to make the content readable and engaging, even if some of the content is standardized.
Cover every issue—either in one standard of review section or in each argument section. If the same standard of review covers all issues, you may prefer to combine them into one. If each one is different, it may be better to break them apart by assignment of error.
- Cite Case Law for Specific Standards: You would cite cases that articulate the specific standard of review for each issue (e.g., de novo for questions of law, abuse of discretion for evidentiary rulings, clearly erroneous for factual findings).
Use subheadings
Break down your argument into readable sections with different subheadings when helpful for clarity. Long, run-on sections are hard for the reader to follow. Break key points up into section headings with declarative sentences to better guide the reader.
Style and content
When in doubt, remember the law school IRAC or CRAC methods? Do whatever works for you stylistically but try and remember that the judges reading your brief are not as in the weeds as you are. They might need a helpful framework and a longer explanation than you are anticipating.
Write in plain English, without legalese.
Citations
Save formal blue-booking until the end, but at least insert a short cite as you write. Don’t wait until the end. It's tedious whenever you do it, but it is especially cumbersome when you are done with your brief. Why not do it when it is right in front of you?
Workflow
Work through issue by issue, or move back-and-forth when you hit a wall. But keep moving. Find what works best for you.
Are you a morning person? Set aside a morning to work on the part that requires the most thought. Think about how you work best. Sometimes it is easiest to calendar blocks of time for specific sections: (i.e., Tuesday: 2–5 p.m., Day 1 of the Jury trial, St of Facts). And then you'll know if you're staying on track or not.
Start with your strongest issue (both in the brief and in your drafting process). Allocate your time based on what’s most likely to persuade the court. Some advocates suggest you should pick your issue that has the best remedy, but we suggest starting with your strongest argument to maintain your credibility.
Harmless error
Don't forget about a harmless error section—appellate courts love to avoid addressing hard issues if they can. Explain why the error hurt your client or—if you’re the appellee—why the alleged error didn’t matter. See Va. Code § 8.01-678.
Step 8: Edit, edit, edit
Take a break. Give yourself time apart from the brief before you begin editing. You will notice new typos or issues. If you’re under a tight deadline, ask a colleague or staff member to proofread for you.
Step 9: Create your tables
Your brief will need a Table of Contents and a Table of Authorities. Save this until the end.
You can elect to use a print service or support staff to create these for you. It is the perfect opportunity to outsource and save yourself some time, if needed. Other attorneys do this step themselves as a form of proofreading.
Whatever you choose, be sure to leave yourself enough time to complete these processes correctly. Many print companies require at least 24 hours’ notice, so calendar a reminder for this.
Conclusion
Have questions? Need help? We are experienced appellate counsel who can help guide you and your clients through the process. We offer consulting services for clients and law firms and enjoy helping our trial attorney colleagues whenever possible.
You’ve got this!