3.1 CREATING ANABSTRACT OF THERECORD
The first thing you should do as you prepare to write a brief is to get to know the case to which you have been assigned. If you are preparing a motion brief, it is likely that you were with the case from its inception.
If you are preparing an appellate brief, you may also have worked on the case from the initial pleadings onward. Sometimes, however, both in law school and in practice, you may arrive on the scene a little later. When that happens, your job is to get to know the facts and the procedure as if they had happened to you. Thus, you should carefully study the “record” of the case. The record can consist of many different elements, depending on the stage of litigation and on the case itself. If you are filing a motion to dismiss, for example, the only “record” you may have is the complaint. If you are filing a motion for summary judgment, the record may include not only pleadings, but also affidavits, depositions, answers to interrogatories, and written admissions or stipulations of fact. If you are writing an appellate brief, the record will also include the decision(s) below, and it may include transcripts of trial testimony, reproductions of exhibits or other evidence offered at trial, and other items.Because appellate records can be so voluminous, many appellate courts either require or allow what is often called a joint appendix, prepared by the petitioner and perhaps supplemented by the respondent. The joint appendix is a printed document that includes record elements that one or both of the parties would like the appellate court to have before it while the court is making its decision. Technically, the joint appendix does not take the place of the record; the court may always refer to the complete record if it wishes. As a practical matter, however, it is reasonable to think that judges would prefer not to have to consult the full record when reviewing decisions below.
Thus, you should certainly plan the joint appendix and, later, write the brief, as if the joint appendix is the entire universe of factual information to which the judges will refer.The joint appendix always contains certain procedural information; it also contains information that one or both of the parties believe is relevant to the appeal. United States Supreme Court Rule 26.2 specifies how the parties should collaborate to compile the joint appendix. Rule 26.1 describes the categories of material that should be included in the joint appendix:
The joint appendix shall contain: (1) the relevant docket entries in all the courts below; (2) any relevant pleadings, jury instructions, findings, conclusions, or opinions; (3) the judgment, order, or decision under review; and (4) any other parts of the record that the parties particularly wish to bring to the Court’s attention.
Rule 26.1 also provides that “[a]ny of the foregoing items already reproduced in a petition for a writ of certiorari [or in another document submitted to the court] need not be reproduced again in the joint appendix.” As a practical matter, the joint appendix is often relatively short because the appendix to the petition for the writ of certiorari contained much or all of the needed information. Combined, these appendices usually contain the complete text of any decisions below and may contain excerpts of trial testimony, excerpts of other documents submitted into evidence (e.g., depositions), or reproductions of exhibits used in the case. The selected materials provide the court access to sufficient knowledge about the case without forcing the judges to wade through an enormous record.1
When filing an appeal in a court other than the United States Supreme Court, you should consult the relevant rules of procedure and local rules to see what requirements exist regarding the “record on appeal,” as it is often known.2If you are at the intermediate level, you may be assembling the record on appeal as you work on the brief.
If you are arguing to a court of last resort, you may be able to start from an excerpted record that was created for the intermediate court.Whether the record is a joint appendix, a “raw” record and opinions below, or just pleadings and affidavits, your job at this early stage of the writing process is to identify the important facts of the case. One of the best ways to organize this process is to create an abstract of the record. An abstract in this sense is a referenced summary of the information contained in the record. The purpose of an abstract is to help the lawyer — or whoever is working on the case — to easily find important information from the record throughout the writing process.
Reading the record materials carefully a few times and creating a good abstract will enable you to learn more about your case now and to find important record information later, while you are conducting legal research or writing the brief.
Like conducting legal research, preparing an abstract is often a recursive process. It is difficult to understand the significance of the case’s facts until you know what law applies to the case, but it’s difficult to identify the relevant law until you know the facts. Therefore, as preparation for creating an abstract, read over the lower court opinions or the pleadings first to familiarize yourself with the major issues that the case presents. If questions presented or other issue statements are available, they can help you to focus on the most significant controversies. After you have some idea of the issues on appeal, read through any other materials two or three times. You may wish to abstract information as you go through it each time, or you may wish to wait until you have read the documents through once before you begin to abstract the details that you think are important.
Your method may differ if you are working on an appellate brief as opposed to a motion brief. If you are working on an appellate brief, be sure to abstract the information and arguments contained in the decisions below.
Furthermore, when reviewing an appellate record, note that you may need to distinguish between the court’s findings of fact and the information that was merely offered into evidence in the trial court. Consider precisely what decisions of the court are being appealed and be sure to write down significant information about each one. If you are working on a motion to dismiss or a motion for summary judgment, consider the standard of review. If you are writing a brief in opposition to a motion for summary judgment, for example, you may be arguing that you have provided evidence sufficient to establish your claim as to one of your causes of action. In that situation, when reviewing the record, you would obviously review the evidence very carefully. When doing so, and when considering the rest of the record, you would consider your client’s burden of proof as to the relevant issues and review the record in light of those burdens of proof.To create the actual abstract, make a chart — either on paper or on a word processor — and summarize the important information found in each part of the record or joint appendix as you read through it. Here are some examples of things to look for and to record:
1. Positive facts, testimony, and other evidence, and the page cites 2. Negative facts, testimony, and other evidence, and the page cites 3. Where the various segments of the appendix begin (e.g., each separate pleading or other type of document) (if a formal joint appendix has been created, this information may appear in its table of contents) 4. Evidence that establishes needed elements of the crime or cause of action, and the page cites 5. Findings of fact in the opinions below, and the page cites 6. Legal findings in the opinions below, and the page cites 7. Major arguments that each side has made below, and the page cites 8. Concessions that either side has made below (e.g., in pleadings or in stipulations), and the page cites 9. Information that may support any policy arguments you plan to make, and the page cites 10.
Any information you think is important, even if you are not yet sure why it is important, and the page cites3A section of an abstract of the joint appendix in the case of Adolph Coors Co. v. Bentsen (later decided as Rubin v. Coors Brewing Co., 514 U.S. 476 (1995)) might look like the example that follows. In that case, counsel for Coors was arguing that the First Amendment allowed beer manufacturers to print on beer labels the percentage of alcohol in the beer and that therefore the prohibition-era regulation that forbade this information was unconstitutional. The joint appendix was over 350 pages long, and it contained excerpts of various depositions as well as photographic reproductions of several trial exhibits and one beer commercial.
In the excerpts below (from two different parts of the abstract), the attorney has recorded the page number from the joint appendix in the left-hand column. In the righthand column, the attorney has described the information that can be found on that page. In the third column, the attorney notes what value the information might have for the client’s argument. As noted above, you will understand the legal significance of the facts better after you have conducted legal research. Do not, however, neglect to record the thoughts that occur to you as you create the abstract. They may yield creative arguments or ideas that would not occur to you after you have been “biased” by your knowledge of what courts usually do with cases like that of your client.
The attorney can use the abstract to ease the process of writing the brief. First, the attorney can scan through the abstract to find references to information that might be helpful. Furthermore, when the attorney recalls facts that need to be quoted or cited in the brief, he or she can use the abstract to quickly find the appropriate page in the joint appendix or opinion below and retrieve specific language, citations, or other information to include in the brief itself.
Excerpts from Abstract PAGE # INFORMATION VALUE 135 First page of deposition of Timothy
Ambler, alcohol mktg. expert from England
139-40 Testimony re: mandatory disclosure of alcohol on beer labels in Britain and the European Community
* * * * * * 284 Plaintiff’s Exh. 3A — Chart showing alcohol % by weight of various beers
289 U.S. Dept. of HHS, Inspector General’s Survey on Youth and Alcohol: “Do they know what they’re drinking?”
294 Survey findings: “2/3 students can’t distinguish alcoholic beverages from nonalcoholic beverages” Any precedent for following international precedent?
* * *
Shows low range of variation among most beers
Generally shows which consumers are and are not aware of alcohol amounts Shows public health benefit of putting alcohol percentage on the label
In these days of digital recordkeeping, you may find that some or all of the record materials are available in digital form. In that situation, it may be wise to create links to the full text of the record while creating the abstract. But be sure that you still take the time to include relevant quotations and paraphrases in the abstract itself. Do not let the ease of switching to full text make you skip the important step of reading and rereading the complete record and creating a careful summary of the information, as well as creating a record of your thoughts as you review the record.
Likewise, consider what software you want to use to create your abstract. Taking the time to learn the ins and outs of a program like Excel might allow you to create multiple columns and label several different categories, e.g., issues, dates, parties, elements, etc. You can then easily re-organize your abstract to focus on the categories you have identified. This type of re-organization may help you to find needed information, and it may also allow you to see facts in a new light and generate new ideas or arguments.
Creating an abstract may be time-consuming, but it can actually save time in the long run. The process of creating an abstract helps you get to know the realities of your case and lets you rely on recorded information instead of memory. When you prepare for oral argument, you can use your abstract to study the crucial facts, so that you can refer the court to specific record pages as needed. More importantly, during brief writing, a good abstract makes it easier for you to support your fact statement and your arguments with vital citations to specific pages, paragraphs, or lines of text in the record.4As a Texas judge and her co-authors noted, “[t]he court will mercilessly examine your citations to the record and authority, and you will lose credibility if you miscite either.”5I would note that your credibility will probably suffer even more if citations are missing.