Using “Decision Cues” in Appellate Writing

Experienced appellate advocates understand that they are writing for a small and specialized set of readers — appellate judges — who must process an extraordinary amount of information in a limited period of time. For this reason, effective appellate advocacy frequently requires more than careful legal analysis and clear prose; it also requires that the advocate provide a framework to aid the reader in processing a wealth of information and reaching a decision. Providing such a synthesis goes beyond a clear and coherent legal argument; it places the issues in context in a way that commands a favorable decision.

One effective strategy to assist judges in processing information is the use of what I call “decision cues.” Decision cues are features of legal writing that aid a judge in processing information about an unfamiliar or complex field of law by drawing on their familiarity with general decisionmaking principles. By their nature, appellate judges are procedural specialists, but substantive generalists; they have developed expertise in certain procedural decisionmaking rules (canons of interpretation, use of precedent, standards of review, etc.) that can be used to decide a wide array of substantive questions. Decision cues are rhetorical devices by which an advocate can use a general decisionmaking rule to suggest the strength or weakness of a substantive proposition — even if the judge does not otherwise know anything about the substantive question. To take a familiar example, appellate judges are highly disciplined decisionmakers who tend to be very attuned to the order in which issues should be addressed on appeal. If an appellant raises a jurisdictional complaint but does not address it as a threshold issue in the brief, the very structure of the appellate brief becomes a sign of weakness, signaling a lack of confidence in the argument. An effective appellate advocate will highlight that weakness, using the reader’s procedural expertise to draw inferences about the strength of the argument.

There are many such “decision cues,” and many opportunities to use them effectively in appellate advocacy. I liken this strategy to Berthold Brecht’s theory of “epic theater,” which argued that the audience should not be passive; theater should provoke self-reflection and critical engagement by the audience. To that end, Brecht employed a variety of devices to break down the barrier between the audience and the stage, inviting the audience to confront the reality behind the dramatic action. (In short, Brecht forced the audience to pay attention to “the man behind the curtain.”) Through effective use of decision cues, appellate advocates can do the same, inviting their own audience to confront the reality behind an opponent’s carefully constructed presentation and providing significant signposts for each judge’s journey through the appellate briefs.

Russell Post, Beck, Redden & Secrest, L.L.P.