How to Lose Your Appeal: Ignore the Court’s Rules / Make the Court Find Your Argument

It’s one thing to get practice tips from judges at a seminar or in a bar publication. Court of Appeals Chief Judge Yvette Miller has some tips in appellate advocacy in this Month’s Georgia Bar Journal (PDF page 28 – worth the wait for it to download). It’s quite another thing to get advocacy advice in an appellate opinion telling you how you ignored the rules and how confusing your brief was to read.

Such is the case in the August 27 opinion of McCombs v. State. Before the Court of Appeals reaches the case’s merits, they begin by explaining why they had trouble with the appellant’s case:

As a threshold matter, we note that McCombs has failed to comply with Court of Appeals Rule 25 (c) (1), which requires that the sequence of arguments in a brief follow the order of the enumeration of errors and be numbered accordingly. McCombs includes three enumerations of error, but only two argument sections. Moreover, the arguments do not coincide with the numbered enumerations, and do not follow the order of the enumerations. As we have previously held,


Rule [(25)] (c) (1) is more than a mere formality. It is a requirement which this Court imposes to ensure that all enumerations of error are addressed and to facilitate review of each enumeration. By failing to comply with the rule, [McCombs has] hindered the Court’s review of [his] assertions and [has] risked the possibility that certain enumerations will not be addressed.

We learn two valuable lessons from this opinion. One, is that briefs should comply with the Rules of the Court of Appeals. There aren’t many, and they are easy to find.

The other lesson is that you shouldn’t make the Court work to figure out what or where your argument is. Things are hard enough already for the appellant. Energy and precious resources the Court could spend being persuaded by you should not be spent flipping pages.

Even if Rule 25 did not exist, wouldn’t you want to do what the Court advises anyway? Ever read a book where the chapters were in a different order from the way they were listed in the table of contents?

Maybe Mr. McCombs’s conviction would have been affirmed anyway. But confusing the Court to the point that they start an appellate opinion giving you practice tips was certainly no help to the cause.

So, in short, read the rules. And write with the reader in mind with a resolve to make things easy. It’s important in any written work. It is particularly so when you are trying to convince a judge that she should order a person to receive a new trial.


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