by Angela Spoede, Staff Attorney at the First Court of Appeals
Before I was a lawyer, in what feels like another life, I was an English teacher. One of the biggest challenges I faced was imparting persuasive writing skills to my students. Their first efforts at “persuasion” usually involved the use of various typeface changes to emphasize that they were really really RIGHT!!! They would branch out to gratuitous use of adverbs like “obviously” and “clearly,” peppered with the occasional rhetorical question—What could be more persuasive?
In my class, we learned to move beyond typographical flourishes and stylistic devices by taking a deeper look at the heart of persuasive writing. There is no shortage of persuasive techniques to help writers carry their point. Some writers rely on repetition and appropriate use of similes, metaphor, or analogies, while others focus on addressing objections effectively or finding the right hook to capture a reader’s attention and. But the most fundamental aspect of persuasion, and the one that has served me best in my practice of law, is the understanding that persuasion starts with a sound argument. Even the best use of literary devices and a snappy writing style won’t save a flawed or incomplete argument.
Creating a sound structure for analyzing and crafting appellate arguments begins with the consideration of four building blocks of persuasive briefs: preservation, presentation, error, and harm. Each of these factors plays a role in convincing the court to grant relief (or not). They embody the various obligations appellate courts weigh in addressing legal arguments in order to “hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.” See Tex. R. App. P. 47.1. These four foundational ideas in appellate analysis offer a way to think through the construction of the argument in a way that will lead to the most persuasive issues and ideas.
Preservation is the first block in building a strong foundation for appellate briefs. Generally, as “a prerequisite to presenting a complaint for appellate review,” the litigant must have presented the complaint to the trial court and obtained a ruling. See Tex. R. App. P. 33.1(a). Preservation is essential in presenting a compelling legal argument that will yield results on appeal—no amount of clever analysis can overcome the failure to preserve a complaint for review on appeal. And even for issues that do not require preservation, see, e.g., Rule 33.1(d) (providing that a complaint in a civil nonjury trial regarding the legal and factual insufficiency of the evidence may be made for the first time on appeal), taking the time to consider the potential issues in the context of the trial record ensures that the legal writer has chosen the strongest possible issues to raise on appeal.
Presentation is the second, but equally important, block in the foundation of persuasive appellate arguments. An issue that is not presented to the court cannot result in any relief. It is easy to dismiss the concept of preservation as a simple step that does not require extensive through. A quick search of cases, however, reveals that briefing waiver is more common than most appellate lawyers would prefer. But brief writers need not fling their thoughts onto the page and hope for best when it comes time for appellate courts to consider whether their arguments are presented properly. A little thought on this issue will go a long way. Most briefing waiver comes down to one of two deficiencies—either the briefer does not identify the portions of the record relevant to the issue, or the writer fails to provide relevant authorities. See Tex. R. App. P. 38.1(i). The writer who plans appellate arguments with these components in mind will not have arguments dismissed on the ground of briefing waiver.
In addition to providing adequate legal citation to the record and to appropriate authority, presentation of the issues on appeal must be “clear and concise.” See id. Persuasive advocates move beyond that threshold and consider the nuance of presenting legal issues. Considerations such as the relationship between issues and the most effective order are important here. Advocates are wise to consider which issues will grant the greatest relief and whether any of the issues build on each other. The goal is to present each issue in a way that ensures the audience already has the information it needs to assign importance to the facts and arguments. Be succinct so that no issue is lost in a sea of confusion. Use headings to guide readers through complex issues. Finally, consider syntax and word choice. For example, describing a document as an “attempted intervention” can send a different message than the more neutral description of “a petition in intervention.”
Once the proper foundation is laid, the next block in building a persuasive appellate brief is the discussion of the error itself. This is the where the main structure of the entire argument shines. While setting out the error might seem straight forward, brief writers frequently miss opportunities to persuade the court by shortchanging this section of the analysis. A brief might contain a complaint about a ruling or its result without identifying the specific error that led to the judge into making the complained-of ruling. Asserting that the trial court erred in denying a motion for new trial might satisfy the requirements for presentment of an issue, but the logical force behind that argument depends on explaining why that denial was erroneous. The best and most persuasive advocates take their argument beyond a plain description of the error itself and address adverse authority or “bad” facts. In doing so, they anticipate counterarguments and concerns that the court is likely to raise.
To complete the construction of a persuasive appellate argument, advocates must consider the final building block—the existence of demonstrable harm. The existence of identifiable harm resulting from the complained-of error is a necessary component for granting appellate relief in most cases. More importantly, clearly identifying the harm resulting from an error presents a final opportunity to persuade. The Rules provide that “[n]o judgment may be reversed on appeal” unless the appellate court concludes that the complained-of error “probably caused the rendition of an improper judgment” or “probably prevented the appellate from properly presenting the case to the court of appeals.” Tex. R. App. P. 44.1. Despite this provision, briefers frequently skip any mention of harm to their clients, or they rely only on conclusory statements such as, “This error was obviously harmful.” Even when harm is presumed or the resulting harm seems obvious, making a connection between the error and the harm suffered helps to reinforce the existence of the error in the first place. This connection motivates the reader to address the harm by moving the error from abstract to relatable and, most importantly, correctible.
Methodically using these simple building blocks for constructing persuasive appellate briefs can help appellants choose their best arguments and avoid unfortunate rulings on waiver or lack of harm. Far from being mere “technicalities,” both preservation and presentation protect important interests such as fairness, judicial neutrality, and economy of resources for courts and litigants, and they are necessary to persuading the court. Careful consideration of the nature of the error and harm that resulted provides further opportunity to craft winning arguments. This four-step framework can also help appellees find flaws in the appellant’s brief to bring forward or reasons to support the trial court’s ruling. By (1) examining each potential issue and asking whether it has been preserved, (2) considering how it might best be presented, (3) explaining the precise nature of the error, and (4) identifying the resulting harm, a writer can create a solid structural foundation on which to build the most persuasive legal argument.