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Based upon my experience as a law clerk and on many conversations with judges about effective appellate brief writing, I can safely make the following generalization about appellate judges: When they pick up a new brief their first question is, “What is this case about?” To answer that question, the judge usually turns to the “Statement of the Issue.” Because the judge will form her first impression of a brief upon reading that statement, and because that impression will color her reading of the rest of the brief, you want to make sure that first impression is favorable. A good statement of the issue will do more than identify the legal issue on appeal-it will lead the judge to want to resolve the issue in your client’s favor.

If your first year law school moot court seminar was anything like mine, you were taught to phrase the issue on appeal like this: “Whether the trial court erred by admitting the defendant’s prior conviction for assault.” If I am successful in this column (as was my colleague, Mark Kravitz, when he taught me about framing appellate issues), you will never start another statement of the issue this way.

Practice Book Section 67-4(a) says a brief shall contain “[a] concise statement setting forth, in separately numbered paragraphs, without detail or discussion, the principal issue or issues involved in the appeal….” Nothing in this rule requires a statement of the issue to begin with the phrase, “Whether the trial court erred by…” Nor does the rule preclude the drafter from including a few facts to put the issue in context. Incorporating those few facts can make all the difference between the statement that merely informs and one that persuades.

Compare the following two statements of the same issue:

1) Whether the $15 million damage award was speculative?

2) At the time of its demise, plaintiff’s business was less than 8 months old, had never sold a single product despite months of sales efforts, and was insolvent. Nevertheless, plaintiff’s expert projected the business’s “likely” sales over a 12-year period and opined that it would have generated $15 million in profits. Was the jury’s award of damages in that amount speculative?

Contrast these two statements as well:

1) Whether the trial court erred in instructing the jury that it could find the defendant was negligent even if it did not believe the testimony of plaintiff’s expert?

2) Connecticut law requires a jury to base a plaintiff’s verdict in a medical malpractice case upon credible expert testimony that the defendant breached the applicable standard of care. Did the trial court err when it instructed the jury, “You may, but you are not required to, base a finding of negligence on the testimony of the plaintiff’s expert?”

In each of these examples, the first version is barely adequate to inform the court about the nature of the claimed error. The second version not only puts the issue in context, but also strongly suggests its preferred resolution. In other words, if the record and the law support the factual and legal premises of the issues as you have stated it, the resolution of the issue should be obvious-you win!

To sum up, kick the habit of starting your statement of the issue on appeal with “Whether.” Instead, begin with one or two statements of fact or law that put the issue in context and also suggest how the issue should be resolved. That format-statement, statement, question-should go a long way towards ensuring that the appellate judge’s first, and last, impression of your case is favorable.

This article republished with permission from law.com.