By Ben Gooding
When I first started at the South Carolina Court of Appeals, a fellow law clerk described my new place of employment as a “written court.” At that time, the description didn’t make much sense to me. However, over the next two years, I discovered the description was actually quite fitting. While parties are guaranteed the right to appeal the lower court’s decision, there is no guarantee an appeal will result in the opportunity to orally argue the contested issues before a panel of judges. In fact, most appeals to the South Carolina Court of Appeals are decided solely on the briefs. Accordingly, your appellate brief is your only guaranteed opportunity to persuade the appellate judges that error did or did not occur at the lower court. The following tips are meant to help avoid some of the common mistakes that I saw during my time with the Court.
- Carefully identify your issues on appeal. Avoid the shotgun approach. Tossing in weak arguments will dilute your credibility with the Court. Most successful appeals have only a few good issues.
- Be direct and concise. Avoid lengthy examples, voluminous case law without explanatory parentheticals, and extraneous information. Remember that you are writing to seasoned, learned Judges and their staff. They want objective facts, supportive case law, and concise analysis.
- Avoid misconstruing facts and case law. Give an objective review of the facts. Misconstruing the facts of the underlying case and mischaracterizing the holdings of existing case law are two of the fastest ways to ruin your credibility with the reader. Objectivity can coexist with persuasive writing.
- Cite to the Record on Appeal. Every factual proposition in your brief should be followed with a citation to the record on appeal. These citations should reference the page number where the support can be found in the record, not the original transcript. The Judges and their chambers will always double check facts and case law cited in the briefs, so thorough citation to the record will be greatly appreciated and can help to bolster your credibility.
- Standard of Review will make or break your case. Remember to properly utilize your standard of review. If the issue on appeal is primarily factual and you have difficulty finding supportive authority, examine your standard of review for legal support. This can be particularly helpful for Respondents who often benefit from a heightened standard of review on appeal.
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