Common Mistakes Seen in Appellate Petitions and Briefs

Last week, Texas Supreme Court Justice Debra Lehrmann spoke in Dallas about (1) how the court decides whether to grant or deny review; (2) common mistakes seen in appellate petitions and briefs; and (3) oral argument at the court.  Because Justice Lehrmann had so many great insights, I am dedicating a blog post to each of these three topics.  Here is the SECOND of the three blog posts:

As for common mistakes seen in appellate petitions and briefs, Justice Lehrmann addressed seven.

The first common mistake is including a statement of facts that has too much or too little detail.  A statement of facts should tell a good story and simply cannot do so if it has too much or too little detail.

The second common mistake is including too few case citations.  After all, appellate review largely revolves around analysis of legal precedent.

The third common mistake, applicable only to practice before the supreme court, is over-reliance on lower court holdings.  The supreme court relies primarily on its own precedent and, consequently, prefers that advocates do the same.

The fourth common mistake is use of hyperbole.  It is simply not persuasive to argue that the world will end if the court rules a certain way.  An example of such a blunder: “The [court of appeals] holding will unleash havoc and disorder upon the entire system of justice in Texas.”  Justice Lehrmann reasoned: “Arguments that read as if the outcome of the case threatens to harken the apocalypse achieve the opposite result of what they want to achieve.”

The fifth common mistake is poor proofreading.  Typographical errors and improper punctuation detract from an otherwise strong argument.  It is amazing that many documents filed with the supreme court do not appear to have been proofread.

The sixth common mistake is failing to address arguments which your opponent has made or is likely to make.  While addressing counter-arguments should not be the primary focus of your filing, it is unwise to simply ignore them.

The seventh common mistake is failing to include sufficient record citations.  Stating a fact without citing to the record will likely prompt a reader to disregard that fact. It is impossible to include too many record citations.  When stating a fact, don’t just cite to one instance in the record which supports the fact; cite to every such instance in the record.  “Doing so may just tip the scales in your favor.”