I'm not sure what it is, but structure generally tends to escape me when it comes to my writing, and also when it comes to my life in a lot of ways, so when I first read through the section on "The Appellant's Brief" on page 15 of the Handbook of Appellate Procedure the instructions totally did not sink in. Maybe that is leftover from the seventies hippie rebel in me!
As a result, my first brief had a section on the Standard of Review which, had anybody read it--and I sort of doubt any Judge did, since I lost--consisted of a jumble of pretty much as many standards I could think of. I said, take these ten issues and consider them according to this whole bunch of standards that I pulled together from my reading on the subject.
Well, ok, again, I guess I understand why no judge read my brief, as I suspect they did not.
It was only in my most recent endeavors in Appellate Court, after I had the opportunity to read the brief of the opposing attorney in my case, that the light began to shine. I have to thank that opposing attorney in my case. Without her miserable and relentless responses to my motions and briefs, I wouldn't be the smart, intelligent, and forthcoming self represented party I am today!
So this is what I figured out. For each issue you present in your brief, you must state what particular factor the judges should take into consideration when they evaluate it, i.e. what Standard of Review would you like them to consider.
Thus, the parts of a brief are as follows:
1) Table of Contents;
2) Statement of Issues;
3) Table of Authorities;
4) Statement of Proceedings and Facts;
5) Legal Argument;
The Section on Legal Argument (No. 5) should repeat exactly each one of the Issues you listed in your Statement of the Issues (No. 2), provide the Standard of Review for each Issue, and then elaborate upon the case law or constitutional law that supports your legal argument. So the sequence is: I. Issue #1; II. Standard of Review; III. Legal Argument on that Issue. Go to the next issue until you have repeated the process for each issue.
This means that your issues cannot be compound. Each issue should encompass a single idea. Each idea should be considered according to a single Standard of Review.
According to the Handbook, "The statement of the standard of review is an opportunity to tell the judges hearing the appeal how you believe they should review the actions of the trial court." It helps to narrow down and focus the attention of the judges on the issues you would like them to address.
The Standard of Review that you apply to the issues in your appeal can have a significant impact on the likelihood of your appeal achieving a successful result and so you need to be scrupulous in choosing the appropriate ones.
You can choose from a broad array of Standards of Review, but the ones that the Handbook Recommends are as follows:
A) The "de novo" or "plenary" standard of review. This is the standard you would use if the Trial Court simply violated the law or misinterpreted a particular statute in its decision in your case. This is the best standard because it really means that in considering the issue the Appellate Court is not required to defer that much to the determinations of the Trial Court;
B) The abuse of discretion standard of review. This is the standard you would use if the Trial Court mishandled issues related to the management of the trial, i.e. scheduling, evidentiary rulings, etc. during the course of the Trial;
C) The clearly erroneous, or plain error standard of review. This is the standard you would use of it appears that the Trial Court made factual determinations which were simply wrong. Remember, another term for a judge is "Finder of Fact" and everything that the judge states in his or her Memorandum of Decision is supposed to be a fact, so if you read through a judges decision and see that one of his determinations is not a fact, in your view, the Appellate Court should review that determination under the standard of "plain error". Unfortunately, the Appellate Court tends to defer considerably to the Trial Court in regard to the decisions it made in regard to questions of fact.
As you can imagine, if you specifically direct the appellate judges as to exactly the basis for how a determination should be made on each of the issues in a case, this makes things much easier for them.
For more information on the structure of the Legal Argument in a brief for Appellate Court, see Connecticut Practice Book Sec. 67-4(d).
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