The importance of grounds in any appeal needs little explanation. They command the appellate court’s attention, even when it re-examines the merits, and shape its thinking.
But do we formulate them optimally? I mean neither correctness, which depends on the facts, nor inclusion of every desirable element: the infringed provision, what happened and what the court should have done. I mean wording them so the appellate court can understand them as easily as possible.
Beyond formal compliance, that is their purpose. We cannot persuade a court that does not understand our position. If the grounds themselves are unclear, the supporting reasons are less likely to persuade: the reader will concentrate on working out what the argument concerns, assuming they are not discouraged altogether, rather than on the argument itself. How we write matters alongside what we say.
The traditional approach
Traditionally, we write something like:
I allege against the challenged [judgment/order/other ruling]…
Here is the first irrationality: only a court, not its ruling, can make an error or breach a provision. This is shorthand, of course, but why use it when an equally short precise formulation is available: “I allege against the first-instance court…”? Depending on whether procedural or substantive law is involved, developed grounds may read:
I allege against the challenged judgment:
1. infringement of Article X of the Code of Civil Procedure through [incorrectly doing A], whereas [B was required];
2. infringement of Article X of Act Y through an erroneous interpretation consisting in accepting that […], whereas a correct interpretation should consist in accepting that […], because […];
3. infringement of Article X of Act Y through failure to apply it to the facts and consequently finding [A], whereas [the provision applied for specified reasons], consequently requiring a finding [of B rather than A].
Each example, like real-life grounds, is one very long, multiply subordinate sentence. Linguistics, rhetoric and cognitive science tell us these are generally difficult to read and understand.
All also use words such as “infringement”, “finding”, “acceptance”, “application” and “non-application”: nominalisations, formed from verbs, lately known as “zombie nouns”. Like zombies, they drain life, vividness and movement from prose, making it dry, dull and tangled. One often causes another—“non-application and consequently a finding”—lengthening the text further. Such sentences are generally harder to read than those without them.
This is therefore not optimal: it does not make the court’s work easier or help us win.
The opening formula forces this structure. It also breaks logical continuity in longer appeals. By page five or ten of a commercial appeal’s requests, no reader has mental energy to remember the first-page verb “I allege”, identifying counsel as a living actor. Instead, grounds float without an action, opened by the lifeless noun “infringement”. Although we merely experience difficult reading, reconnecting those fragments to the actor requires mental work. That is tiring, and judges should not be tired unnecessarily.
A simpler approach
If habit alone supports this troublesome formula, perhaps it is time to abandon it. Reformulate it to allow several short sentences per ground:
I allege that in the challenged judgment:
1. The first-instance court infringed Article X of the Code. [It incorrectly did A. It should have done B.]
2. The first-instance court infringed Article X of Act Y by misinterpreting it. It accepted [meaning A], whereas the provision establishes [meaning B]. This is because […].
3. The first-instance court infringed Article X of Act Y by not applying it. It consequently found [A]. For [specified reasons], however, it should have applied it and found [B rather than A].
For substantive law, we can go further: “The court misinterpreted Article X” and “The court wrongly failed to apply Article X”.
Avoid zombie nouns and other obstacles, including excessive passive voice and separating subjects from verbs—topics for other articles. Each ground should ideally be understandable alone without consulting other passages. Complex cases and layered infringements may make this too long, but trying is worthwhile. As elsewhere, remove unnecessary material.
Comparing examples
Consider concrete examples from the supplement to M. Manowska’s Apelacja w postępowaniu cywilnym, 4th ed., Warsaw 2017.
Example 1: procedural infringement. A claimant sought damages for carpet splashed with paint while the defendant performed a painting contract. The court dismissed the claim because the contract had not been proved.
Traditional version (74 words, one sentence in the Polish original):
I allege against the judgment infringement of Article 230 read with Article 229 and Article 232, first sentence, of the Code of Civil Procedure through disregarding that the defendant implicitly admitted conclusion of the contract by not addressing that fact while disputing the amount of loss, meaning conclusion required no proof and the claimant therefore did not breach its duty to prove facts material to determination.
Modified version (80 words, five sentences in Polish):
I allege that the District Court infringed Article 230 read with Article 229 and Article 232, first sentence. It found that the claimant had not proved the contract whose defective performance underpinned the claim. But the defendant implicitly admitted that contract. It did not deny it, instead immediately disputing the loss amount. Under those provisions, the contract required no proof.
Example 2: substantive infringement. The claimant sought interest on a price paid late for goods supplied in both parties’ business activities. The court dismissed it, applying the two-year Article 554 Civil Code limitation for business sales to statutory late interest as well.
Traditional version (87 words, one sentence in Polish):
I allege against the District Court infringement of substantive law through application of Article 554, establishing a two-year limitation period for business sale claims, instead of Article 118, establishing three years for periodic payments, where the claimant sought only statutory interest, a periodic payment rather than the sale price, and despite the principal claim not becoming time-barred because the defendant had performed it.
Modified version (82 words, four sentences in Polish):
I allege that the District Court infringed substantive law by applying Article 554’s two-year business-sale limitation to the claimant’s claim. The claimant sought only statutory interest, which is a periodic payment rather than such a sale claim. Article 118’s three-year period should therefore have applied. Furthermore, the principal claim for the price, on which interest accrued, was not time-barred because the defendant had paid it.
I leave readers to decide which version is more accessible and understandable.
