EVERGREEN SUPREME COURT APPELLATE ADVOCACY PROJECT: Developing the Argument

EVERGREEN SUPREME COURT
APPELLATE ADVOCACY PROJECT

WRITING THE APPELLATE BRIEF:
THE ARGUMENT

In this section of the appellate brief, you formally argue your side of the case. Your objective, of course, is to convince the appellate court to rule in your favor. The argument can be described briefly as an explanation of the appellant’s or appellee’s disputed action and an analysis of its correctness or "wrongness." It is the heart of your brief. It is where you "answer" each of the Questions Presented. You do this by presenting and analyzing the controlling law on each of the questions and urging the court to adopt your analysis and conclusions. You may also want to weave in policy arguments, particularly those that may be suggested by the themes we have studied in this program (see the "Developing the Questions Presented" handout).
The argument is a discussion of the applicable law and an explanation of how it applies to your case. In other words, you will need to present case precedent to support your claim that the appellant or appellee was right or wrong in taking the action that has been challenged. Although we have not studied law in great depth, you should be able at least to identify precedent that is mentioned in the court opinion(s) (majority and dissenting) of your case.
The argument is highly structured. You already have identified the main sections for structuring your argument. These are the Questions Presented, but here they become the "questions answered". For the headings of these main sections, all you have to do is re-phrase the Questions Presented as affirmative or negative assertions. For example, in the Plyler v. Doe case, the dispute was over the constitutionality of a Texas statute which withheld from local school districts any state funds for the education of children who were not "legally admitted" into the United States, and which authorized local school districts to deny enrollment to these children. The Questions Presented in the appellee’s (the side representing the children) brief to the U.S. Supreme Court might be worded as follows:
Whether undocumented aliens may claim the benefit of the Equal Protection Clause in order to challenge a State statute that denies them the right to enroll in the public schools.

Whether the undocumented status of children establishes a sufficient rational basis for denying them benefits that the State affords other residents.
As a heading of a main section of the argument, the first question would be rephrased as an affirmative assertion:
I. UNDOCUMENTED ALIENS MAY CLAIM THE BENEFIT OF THE EQUAL PROTECTION CLAUSE IN ORDER TO CHALLENGE A STATE STATUTE THAT DENIES THEM THE RIGHT TO ENROLL IN THE PUBLIC SCHOOLS.
This is called a point heading. Notice how it is not just a label for this major segment of the argument. It also immediately tells the court what the appellee’s position is regarding this law. Notice how similar this is to the "main point" (thesis statement) in a formal essay. Notice also how it really is a conclusion made even before the argument is presented. The court will then read this section to see how your argument supports that conclusion. After all, if the court is convinced by your argument, it will have to write an opinion supporting it.
Notice further that this heading stands on its own. That one sentence summarizes the argument. The only thing missing is the detail. The text that follows the heading, then, merely fleshes out this argument. You are not completely unfamiliar with how this is done. In a formal essay, you set out to prove your "main point" after you state it in your first paragraph. Fleshing out your "main point" in an essay means proving it with premises that lead to a conclusion. The same is true in an appellate argument.
The argument under this first point heading will analyze how undocumented persons fit the legal definition of "persons" intended as beneficiaries of the Equal Protection Clause of the Fourteenth Amendment ("No State…[shall] deny to any person within its jurisdiction the equal protection of the laws.") That is likely to be a lengthy argument, so it would be wise to use subheadings for the analysis of each of these sub-issues.
In an appellate brief, then, a point heading states a conclusion in this major section of your argument, while a subheading states a major premise in support of the argument you will make in this major section of the brief. In the Doe v. Plyler appellee brief, the subheadings under the first point heading might read as follows:

A. An alien is a "person" guaranteed protection by the Equal Protection Clause.

B. The Court’s prior cases recognizing undocumented aliens as "persons" protected by the Due Process Clauses of the Fifth and Fourteenth Amendment cannot be distinguished on the asserted grounds that persons who have entered the country illegally are not "within the jurisdiction" of a state.

The point heading and subheadings for the second argument might read as follows:

II. THE UNDOCUMENTED STATUS OF CHILDREN FAILS TO ESTABLISH A SUFFICIENT RATIONAL BASIS FOR DENYING BENEFITS THAT THE STATE PROVIDES TO OTHER RESIDENTS.

The argument under this point heading in the appellee's Plyler v. Doe brief will seek to convince the court how the Texas statute fails the rational basis test. It will analyze how the State’s classification of undocumented children as persons not entitled to a free public education does not further a substantial state interest. That argument, too, is likely to be lengthy enough that subheadings will help to delineate the sub-arguments:

A.	The discrimination prescribed by the Texas statute does not further a substantial goal of the State.
B.	The Texas statute imposes a lifetime hardship on a discrete class of children not accountable for their disabling status.
C.	The State’s statutory classification cannot be sustained as furthering its interest in the "preservation of the state’s limited resources for the education of its lawful residents."

While you obviously must use point headings, there is no rule that requires you to use subheadings. However, it is a good idea to use them where your argument is complex or lengthy. Do not overlook the fact that point headings present you the opportunity not only to let the court quickly know your position, but also to present a succinct, complete, persuasive argument, all within the headings. The subheadings present you the opportunity to summarize in a few words the premises that support that argument.

Things to remember when developing the argument section of your brief:

1. To support your position, use precedent as well as policy arguments about what is just, fair, advisable, correct, etc.

2. Decide whether you want to put your strongest argument first or last, making a judgment about how best to make the impact you want to make.

3. Even though your brief has a statement of the facts, do not assume that the court knows them. Argue how controlling precedent applies to the specific facts of your case.

4. Precedent is key. You must cite relevant precedent. It may be useful for you to think of case precedent as the "rules" which you must apply to the facts in your case. You tell the court how specific "rules" (specific cases) apply or do not apply to the facts in your case. If precedent is strongly in your favor, emphasize it. Explain how precedent should determine the outcome in your case. If precedent is not strongly in your favor, distinguish it from the facts in your case. In other words, tell how your facts are different and why particular case precedent is not necessarily controlling.

5. Avoid excessive use of quotations. They detract from the flow of your argument. Quote from precedent only where the language is so vibrant that it captures the very essence of your argument. Otherwise, paraphrase.

6. A useful way to discuss precedent is to use three steps: 1) set forth the legal principle in the precedent, 2) apply the legal principle to the facts in your case, and 3) state a conclusion about the result as you see it to be.

7. Remember that when you cite precedent it is not enough merely to set forth the legal principles established in that precedent. You must apply that precedent to the facts in your case. In other words, you must tell the court how that precedent, which was established on facts in a prior case, is relevant to the facts in your case.

8. In addition to precedent, you may cite secondary authority to support your case. This may be, for example, a strong law review article written by a highly regarded legal scholar. Whatever secondary authority you may use, you must remember to apply it to the facts in your case, just as you apply case precedent to your facts. In other words, you must say why the secondary authority is relevant to your case, i.e., how that authority supports your case.

9. Judges are not interested in your personal opinion about your case. What they are interested in knowing are the legal principles (and policy) that support your case and how they apply to the facts in your case.

A.	An alien is a "person" guaranteed protection by the Equal Protection Clause.
B.	The Court’s prior cases recognizing undocumented aliens as "persons" protected by the Due Process Clauses of the Fifth and Fourteenth Amendment cannot be distinguished on the asserted grounds that persons who have entered the country illegally are not "within the jurisdiction" of a state.