Charles blogged recently about leading with your strength – that is, starting with why you’re right rather than why the other side is wrong. I wholeheartedly agree with this approach. It’s rhetorically more persuasive, it comes across as stronger, and it forces you to think through your case more. I would add one caveat to this approach: get the procedural stuff out of the way first.
When I was a law student, one of my mentors said that in appellate briefing, you need to go 1. procedural before substantive and 2. positive before negative. The latter is what Charles addressed. The former is a necessary place to start because it frames all the discussion that follows. For example, preservation. If a party raises a claim for the first time on appeal and does not argue an exception to the preservation rule, then as appellee/respondent, you need to explain to the court that they can’t/shouldn’t get to the merits of the arguments unless it’s through something like plain error. That changes the lens through which the appellate court views the issues. Rather than asking what the right answer is, the question is on what the trial court should have done on its own, without objection. How clear was the law on this point at the time of trial? That’s a different question than what the law should be now. And it affects how you frame your why-we’re-right arguments later.
So always lead with your strength, but only after you’ve covered procedural arguments that affect the substance of the questions on appeal. Those technical arguments are often the hinge on which a result in a case turns.