Reviewing the Record/Identifying the Issues

May 15, 2024

“Not everything that can be counted counts, and not everything that counts can be counted.”

~ William Bruce Cameron, Informal Sociology, 1963


Your brief must tell a compelling story, one that makes the appellate court want to rule in your favor before actually considering the applicable law. This approach is different from trial work: on appeal, you have a panel of judges educated in the law, whereas at trial, you are often trying your case to a jury of your client’s peers who have very little legal knowledge.

Even if you tried the case being appealed, you must begin by reviewing the entire appellate record to refresh your memory and organize your thoughts. I suggest the following method for converting a complex appellate record into a compelling story.

      1. Read the entire appellate record through once slowly and carefully, indexing all the key facts and procedural events by the page number of the technical record, transcript, or exhibit (where they exist). I find it helpful to read and type at the same time. As thoughts or possible issues occur to you, insert them into the index for future reference.
      2. Have a conversation with yourself; let the index be “stream of consciousness.”
      3. Write the story of the case directly from the index.

After reviewing the record, you know the basic factual scenario and have identified any potential legal issues. Ensure that all potential legal issues you raise were preserved for appeal. There is no need to spend time on a waived issue. Remember, though, that the waiver doctrine is construed strictly, and you should be truly sure that you have waived a viable issue before you abandon it on appeal.

Telling a compelling story in a brief is difficult and time consuming. I still feel that way after writing over 1000 briefs. I also recognize, however, that it is well worth the time and the effort. Knowing the basis in the record of the story you want to tell and the issues you want to argue will get you well on your way to preparing a successful appellate brief.

Having reviewed the record and identified the issues, you must now deepen the validity of your narrative through our next topic of discussion: legal research.