An Appellate Rewrite - Summary of Argument

Part of an occasional series. One of the more important items in an appellate brief is the summary of argument. It's a one-page (or a little bit more) synopsis of the issues and arguments made in the brief. It gives the appellate bench a sense of the case and also helps it to focus its mind on the relevant issues. Thus it must be clear, concise, and present the court with the exact questions that it needs to answer in the appeal.

Below is a summary of argument pulled from one of the briefs filed in the Texas Supreme Court.

The 5th Court of Appeals' errors in reversing the trial court's denial of Respondent's motion to dismiss allows a physician whose license has been revoked due to a long history of drug abuse escape liability because his own lifestyle has made it impossible for William _______ and his mother to serve him with their Chapter 74 expert report. There are three separate and distinct reasons why this honorable Court must reverse the 5th Court of Appeals' decision and affirm the trial court's sound discretion to correct this injustice. First, the manner in which appellate courts have statutorily construed Chapter 74.351(a) by engrafting TRCP 21(a) into the statute requires that Rule 21(a)'s "due diligence" doctrine also be applied in this case. Second, the Court of Appeals failed to apply an abuse of discretion standard of review in disagreeing with the trial court's sound view of the indisputable evidence. And third, the Court of Appeals erred by ignoring the overwhelming evidence showing Petitioner could not possibly comply with 74.351(a)'s service requirement stripping her of her due process rights under the open courts provision of the Texas Constitution.

Here's a proposed revision:

The court of appeals' holding gives physicians an incentive to abscond to escape liability for their own malpractice. Three reasons demonstrate why its holding should be reversed. First, TRCP 21(a)'s due diligence exception should apply to physicians like it does everyone else. Second, absolute adherence to chapter 74.351(a)'s service date, under these facts, would strip ____ of her rights of redress under the Texas constitution's open courts provision. Third, the court of appeals misapplied the abuse of discretion standard; it didn't afford any deference to the trial court's view of the disputed evidence.

Some thoughts that went into the revision:

  • While the particular physician had a drug problem, the appellate court would be more concerned about the overall scope of the law. So I broadened the initial issue.
  • The summary says that the courts of appeal have engrafted section 21(a) into chapter 74, but the 5th Court of Appeals apparently didn't do so. So I opted to change the category from courts of appeal to people.
  • The second issue seemed to be the weakest of the three so I put it last (a party's right of redress has much more punch to it than an abuse of discretion claim).