Burr & Forman commercial litigation partner Devin Dolive authored the article “Making Non-Argument Sections of Briefs Persuasive,” which was featured in the February 2024 issue of the American Bar Association Judicial Division’s Council of Appellate Lawyers e-publication.

The article highlighted a panel discussion held at the 2023 AJEI Summit in Washington, D.C. on the topic of making non-argument sections of briefs persuasive. Dolive detailed the panelists’ emphasis that non-argument sections of briefs should not be viewed as peripheral to the argument and should be used to help persuade the reader. Dolive’s article also utilized the panelists’ discussions to provide tips for creating useful covers and accurate tables and raising short and fair-minded issues in a brief. “It is not just the text of a brief that matters. Even the cover of a brief should be useful and not weird,” Dolive wrote.

Dolive also examined the panelists’ suggestion that good storytelling must be grounded in facts and that bad facts should be addressed and included in the brief, not signposted with overused phrases. An introduction section may be helpful, but often unnecessary, and the issues presented for review should be concise and persuasively framed.

“There are seldom, if ever, eight or nine issues framed in a winning brief. Instead, one way to think about how many numbered issues to include is to ask yourself, ‘Will adding four or five additional issues add value if I lose the first issue?,’” explained Dolive.

In conclusion, Dolive summarized the panelists’ inputs in writing that “Mr. [Ben] Cooper observed that appellate briefs are more kabuki theater than ‘free verse.’ Ms. [Samantha] Chaifetz explained that the ‘rules’ of brief-writing (i.e., the style and structure you were taught in law school, as distinguished from the actual Federal Rules of Appellate Procedure) are made to be broken, but if you are breaking a ‘rule’ when writing a brief, it is important to know why you are doing so. Judge [Albert] Diaz [of the U.S. Court of Appeals for the Fourth Circuit] added that, in writing a brief, the brief-writer should ensure that everything in the brief serves a purpose. That is by no means limited to the actual ‘Argument’ section.”

To view the full article, please click here.