Philipson Legal
An Appellate Boutique


Appellate briefs

A well-written brief is the key to success on appeal. At the core of Philipson's practice is writing briefs for appellants and appellees in cases litigated in the Massachusetts state and federal courts. He also handles administrative appeals in the Massachusetts Superior Court. Philipson has written scores of successful briefs as an appellate prosecutor, and has analyzed hundreds of other briefs as advisor to the Justices of the Massachusetts Supreme Judicial Court. Philipson has seen the common pitfalls of mediocre briefs and knows how to avoid them. 

Writing an effective brief begins by carefully choosing which arguments to raise. For an appellant, that selection involves culling the most promising issues from all those available. Appellants often make the mistake of raising too many issues, obscuring the best ones and burdening the court with claims of questionable potency. As for the appellee, he or she must counter each of the appellant's claims directly and persuasively. Some appellees ignore claims that they perceive are weak or difficult to address, hoping that the court will also ignore them. But leaving a claim unanswered is unwise because it only increases the risk of losing.

A quality brief is well organized and easy to follow. It should adhere to the applicable rules of appellate procedure, which are designed to promote uniformity and simplify the court's work. And yet many briefs flout these rules, making the court's job more difficult and dimming the client's chances of success. For instance, although the procedural-history section of a brief is an essential tool for orienting the judges, countless briefs include either too little information (leaving the court confused), or too much (distracting the court from the pertinent history). When it comes to the statement of facts, many briefs fail to explain the case in a straightforward narrative, frame the evidence according to the applicable standards of review, and hew to the record scrupulously. A factual recitation that exceeds the bounds of restrained advocacy leaves the court with little confidence in the rest of the brief. 

The argument section—the heart of the brief—requires attention to several essential elements. It must straightforwardly address the relevant standards of review, deal with binding legal precedent or the lack thereof, and discuss applicable public policy considerations. Briefs often fail to meet these challenges, devolving into conclusory statements or ad hominem attacks on adversaries or judges. A good brief avoids these improprieties and presents clear and cogent reasons for the court to rule in the client's favor. An effective brief also respects the court's demanding caseload by being concise. Too many briefs are simply too long.

Besides writing briefs, Philipson Legal reviews and gives feedback on briefs written by other attorneys. In this way, Philipson Legal can provide a knowledgeable "second set of eyes" to help others identify holes in their arguments and discover better ways to write, organize, or trim their briefs. Philipson Legal also reviews records in cases to assist others in identifying the most promising issues to press in postjudgment litigation.

Oral argument

Appeals frequently include oral argument before a panel of judges. Philipson has delivered dozens of these arguments, and has studied many others as an advisor to the Justices of the Supreme Judicial Court. He understands the purpose of oral argument. 

By the time of oral argument, the court has prepared thoroughly. The judges typically have read the briefs, the rulings made below, the leading case law, and pertinent portions of the record. In addition, judicial law clerks or staff attorneys have prepared memoranda summarizing and analyzing the briefs for the judges. Counsel can thus assume that the court is familiar with the case before oral argument begins. That familiarity does not, however, mean that there is nothing for counsel to do at oral argument. On the contrary, the judges' thorough preparation means that they will likely have questions for counsel—to probe weaknesses in a litigant's positions, influence other judges on the panel, and explore the parameters of any new rule that a party advocates. 

The most important thing an advocate can do at oral argument is respond to the judges' questions directly and informatively. And yet, in preparing for oral argument, few attorneys take sufficient time to imagine the court's possible concerns and anticipate their questions. Thinking about the case from the court's point of view is critical to a successful oral argument; the conversation that you have with the judges is your only face-to-face opportunity to satisfy them that the results and rules that you advocate make sense not only for your client but for the development of the law generally. 

What counsel cannot do at oral argument is raise new arguments. Some attorneys mistakenly do this anyway—a practice that is unfair to opposing counsel and can backfire by exposing the attorney's failure to adequately argue the case in his or her brief.

Philipson presents oral arguments for appeals that he handles. For appeals handled by other attorneys, he is available for consultations and moot courts.          
Discretionary review by the Supreme Judicial Court

The most significant cases decided by the Supreme Judicial Court are generally those chosen for review by the court in its discretion. Some of these cases are chosen without input from the litigants—i.e., sua sponte transfers of cases pending in the Appeals Court. Other cases are selected based on litigants' applications for direct appellate review, or, for appeals already decided by the Appeals Court, applications for further appellate review. Philipson knows what makes a convincing application for discretionary review, having analyzed scores of these applications and having made recommendations to the Justices about which ones to allow or deny. According to statistics published by the Supreme Judicial Court for 2005 through 2013, applications for discretionary review were granted at an average rate of 48% for direct appellate review, but only 5% for further appellate review. Philipson Legal may be hired to write applications for discretionary review, or oppositions to these applications—both for appeals handled directly and for appeals handled by other attorneys. Philipson Legal also consults on matters of discretionary review, and may be hired to read and give feedback on applications written by other attorneys.
Amicus briefs

A party interested in the outcome of an appeal, but who is not involved in the case as a litigant, may have a say in the appeal by filing an amicus curiae brief. In recent years, the Supreme Judicial Court—cognizant that many of its decisions have effects far beyond the particular litigants before it—has solicited amicus briefs with increased frequency. As advisor to the Justices, Philipson helped the SJC decide when to solicit amicus briefs, giving him an intimate understanding of how these briefs may be of use to the court.

Philipson Legal is available to write amicus briefs on behalf of interested parties. Philipson also writes amicus submissions on behalf of parties seeking to support or oppose applications for direct or further appellate review. As with his other services, Philipson Legal may be engaged to consult and give feedback on amicus submissions drafted by other attorneys.
Trial support

Philipson Legal offers valuable services for trial counsel, including:
  • researching and writing dispositive motions (such as motions to dismiss, for summary judgment, or for directed verdicts), as well as oppositions to these motions 
  • researching and writing motions to introduce or keep out evidence 
  • drafting motions to stay rulings or orders
  • drafting jury instructions
  • helping to properly preserve issues for appeal 
  • assisting in obtaining or opposing interlocutory appellate review 
  • drafting or consulting on postjudgment motions   
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