Appellate skills
It is rare that the verb “think” appears on lawyers’ bills when they account for their time. That is not to say that most lawyers do not think as they act, but there is often a sense that “thought” on its own isn’t something that clients want to pay for. There is a tendency, therefore, to stress words that connote action rather than reflection. When it comes to appellate advocacy, however, there must be time set aside for thinking. Crafting an appeal is a thought-intensive process.
Issue selection & standards of review
The threshold thought process is deciding — as you review the record — which issues to appeal. The best written brief will miss the mark if the wrong issues are selected, or if the issues are not clearly stated. The precise framing of issues is the foundation on which all else is built in an appeal. The fuzzier the issue, the harder you make it for the court to make a focused decision in your favor.
Effective advocacy in civil appeals requires resisting the temptation to raise every possible issue and to make every possible argument in connection with the issues that you do raise. Only the stronger ones should get through the filter — it is a mistake to dilute those with ones that you would not truly expect a panel of sophisticated judges to agree with.
Likewise, exaggeration — or, worse still, misstating the law or facts in the record — will only harm an advocate’s credibility. Conceding certain points, by contrast, can enhance credibility.
A vital — and often overlooked — factor is the “standard of review” that the court should apply to a particular issue. There are several different standards, some more deferential to the trial court than others. It is essential to make a correct determination of the standard applicable to each issue at the outset of working up an appellate argument. Failure to do so could mean that an entire brief would simply miss the point. Despite this, many appellate briefs do not even address this critical element or gloss over it with little rigor.
The written word
Without doubt, written briefs are by far the most important part of an appeal. Therefore, effective appellate advocacy, above all else, involves producing excellent briefs.
“[A]n ability to write clearly has become the most important requisite for an American appellate lawyer... and brief writing can be called a combination of art and science.” (Remarks of the late Chief Justice William Rehnquist, U.S. Supreme Court, to the ABA Appellate Practice Institute, May 29, 1998, reproduced in the Journal of Appellate Practice and Process, Vol 1, No. 1, 3-4, Winter 1999.)
“The brief a judge can follow easily and have confidence in is the one the judge returns to when deciding how to vote the case or compose the opinion. That's the brief you want to write.” (Hon. Judith S. Kaye, Effective Brief Writing, New York Appellate Practice at 215, NYSBA 1995.) Yet, “brief writing has an unusual distinction in the law: More good lawyers do it badly than just about any other aspect of professional practice.” (Rubin, Better Appellate Brief Writing, In Brief, The Practical Litigator, No. 2, March 1997.)
Good writing involves not just the choice of words and syntax, but an argument’s entire structure and logic. As much as is possible given the nature of subject matter, a brief should be a “good read.” Dullness reduces its effectiveness. (As do vitriol and sarcasm.) The process calls for an argument to be crafted through constant edits and numerous rewrites. This is a time-consuming task, requiring considerable patience.
The written presentation must be clear, cogent, and compelling. Unlike briefs written for trial judges who often live with their cases for a year or more, the argument must make sense to busy appellate judges new to the case. It must, at the outset, tell the judges the questions that need to be answered in order to decide the case. Appellate judges face heavy workloads. As shown below, they will spend considerably more time considering your written legal argument than trial court judges, but there is a limit to much time they can spend on your case. You don’t want them to spend time wondering just what on earth it is that they are being called on to decide because the brief was unclear.
Within the first few minutes of reading a brief, a judge should get a feel for what the case is about, why it deserves close consideration, and why the decision should be made in your favor. An appellate lawyer must devise arguments that will get a court’s attention, and then present them in a readable way to a panel of judges who may know little about the area of law at issue — but who do not want to be told at length what an appeals judge probably knows well already. All of that is, of course, much easier said than done.
The scope of argument
The scope of argument on an appeal may be wider than when arguing the law to a trial judge. This is because appellate court precedent that might be binding on a trial court is not absolutely binding on a different panel of the same appellate court. In appropriate cases, appellate court precedent is open for reexamination and critical analysis in a way that would be inappropriate in front of a trial judge.
In addition, an appellate argument can advance policy reasons why you should win. It should identify legal values that would be furthered by a decision in your favor. Unlike trial judges, appellate judges are not just in the business of “managing results.” Their role is also to promulgate an orderly and consistent set of legal rules and principles. The case you are arguing is part of a tapestry that is woven every day throughout the appellate system. An effective appellate advocate should show why the bigger picture requires a particular result.
Appellate law also provides the opportunity to present much longer written argument than is permitted in trial courts. Sometimes, the complexities of a case warrant this. Often, though, lawyers make the mistake of using up their word-count entitlements when a shorter and more focused argument would have been more compelling.
Regardless of how long a brief is, a fundamental difference between the appellate process and the presentation of legal arguments to a trial court concerns the amount of time that will be devoted to considering your briefs. In trial courts, this time is often measured in minutes — the style and depth of your argument must take account of this. Trial court judges — at least, those in state court — do not have their own law clerks or research attorneys who work with them in chambers. They have busy calendars, and they do not have the luxury of spending hours analyzing your papers. In appellate courts, by contrast, a good number of hours will be spent by six or more people — research attorneys and law clerks as well as three judges. This allows you to present a more complex argument. It also means that your arguments and recitation of the facts will be much more closely scrutinized.
Research
An appellate lawyer should relish researching the case, as well as arguing it. Legal research and writing are so intertwined that they are best done by the same person. The best written brief will be useless if the research was substandard. A lawyer who does not enjoy legal research is probably not cut out for appellate work.
Researching an appellate brief involves setting aside large blocks of times without constant interruptions. It is a creative process — and it inevitably involves exploring different theories, some of them dead-ends, before settling on those that are most compelling. It is a process that is at times more scholarly than businesslike.
Oral argument
Oral argument in front of a panel of appellate judges is short and often intense. Typically, each side argues for less than 15 minutes.
In the California Court of Appeal, the judges have usually already come up with a draft opinion before oral argument (although, in most courts, its contents will not be known to the parties). It is rare that oral argument turns around a panel of judges from one outcome to another. But it’s not unusual for oral argument to affect the detail in an appellate opinion.
Sometimes, lawyers find it hard to know what they are meant to say at oral argument. This is because, on the one hand, judges disfavor oral arguments that merely recite the briefs, but, on the other hand, they also disfavor using oral argument to raise entirely new issues that were not in the briefs. It can be something of an art to develop an oral argument that takes account of both of those constraints.
Oral argument is not an opportunity to compensate for an inadequate brief. Rather, it is a chance to highlight and simplify the most cogent points made in the briefing and, perhaps, to iterate a thematic, human message that brings the brief to life.
Most important, though, oral argument is an opportunity to respond to what may be on the judges’ minds. Ideally, the presentation is not in the form of a monologue, as with an argument to a jury. Rather, it should involve a dialog in which a lawyer — after beginning to make an argument — is interrupted and has to respond to pointed legal questions from sharp minds on the bench.
One of the worst mistakes is not to focus on the judges’ questions but, instead, to appear eager to return to a prepared argument. A cardinal rule of oral argument is to focus on those points that the judges want you to talk about, not on what you came to court to talk to them about.
Sometimes, however, the judges show little or no interest in asking questions. When this occurs, it is best to keep the oral argument very short. The lack of questions doesn’t necessarily mean that the judges aren’t interested in your case, nor does it signify anything about whether they agree with your side or not. It just means that they “get” the case and don’t really need to hear more.
In federal court, oral argument is by invitation only — so the fact that it takes place at all means that the judges do want to hear it. In state court, however, the parties have a right to oral argument. As a result, oral arguments are more likely to be met with silence in state court than in federal court.
Appellate procedure
Finally, a thorough knowledge of appellate procedures may not be the most glamorous part of the process, but it is an essential one. The rules governing the appeals process are complex — and are made doubly so by the fact that separate sets apply to state and federal court. Not following the rules — missing a filing deadline, for example, or producing an incomplete record — can be fatal to an appeal. Obsession with detail goes a long way in the appellate process.
Conclusion
Whether you are bringing or defending an appeal, you should be represented by someone with the skill set just described. Moreover, you should be represented by someone who does this type of work all the time, keeping their skills sharp. The surest way of ending up with such a lawyer is to pick an appellate specialist.
Issue selection & standards of review
The threshold thought process is deciding — as you review the record — which issues to appeal. The best written brief will miss the mark if the wrong issues are selected, or if the issues are not clearly stated. The precise framing of issues is the foundation on which all else is built in an appeal. The fuzzier the issue, the harder you make it for the court to make a focused decision in your favor.
Effective advocacy in civil appeals requires resisting the temptation to raise every possible issue and to make every possible argument in connection with the issues that you do raise. Only the stronger ones should get through the filter — it is a mistake to dilute those with ones that you would not truly expect a panel of sophisticated judges to agree with.
Likewise, exaggeration — or, worse still, misstating the law or facts in the record — will only harm an advocate’s credibility. Conceding certain points, by contrast, can enhance credibility.
A vital — and often overlooked — factor is the “standard of review” that the court should apply to a particular issue. There are several different standards, some more deferential to the trial court than others. It is essential to make a correct determination of the standard applicable to each issue at the outset of working up an appellate argument. Failure to do so could mean that an entire brief would simply miss the point. Despite this, many appellate briefs do not even address this critical element or gloss over it with little rigor.
The written word
Without doubt, written briefs are by far the most important part of an appeal. Therefore, effective appellate advocacy, above all else, involves producing excellent briefs.
“[A]n ability to write clearly has become the most important requisite for an American appellate lawyer... and brief writing can be called a combination of art and science.” (Remarks of the late Chief Justice William Rehnquist, U.S. Supreme Court, to the ABA Appellate Practice Institute, May 29, 1998, reproduced in the Journal of Appellate Practice and Process, Vol 1, No. 1, 3-4, Winter 1999.)
“The brief a judge can follow easily and have confidence in is the one the judge returns to when deciding how to vote the case or compose the opinion. That's the brief you want to write.” (Hon. Judith S. Kaye, Effective Brief Writing, New York Appellate Practice at 215, NYSBA 1995.) Yet, “brief writing has an unusual distinction in the law: More good lawyers do it badly than just about any other aspect of professional practice.” (Rubin, Better Appellate Brief Writing, In Brief, The Practical Litigator, No. 2, March 1997.)
Good writing involves not just the choice of words and syntax, but an argument’s entire structure and logic. As much as is possible given the nature of subject matter, a brief should be a “good read.” Dullness reduces its effectiveness. (As do vitriol and sarcasm.) The process calls for an argument to be crafted through constant edits and numerous rewrites. This is a time-consuming task, requiring considerable patience.
The written presentation must be clear, cogent, and compelling. Unlike briefs written for trial judges who often live with their cases for a year or more, the argument must make sense to busy appellate judges new to the case. It must, at the outset, tell the judges the questions that need to be answered in order to decide the case. Appellate judges face heavy workloads. As shown below, they will spend considerably more time considering your written legal argument than trial court judges, but there is a limit to much time they can spend on your case. You don’t want them to spend time wondering just what on earth it is that they are being called on to decide because the brief was unclear.
Within the first few minutes of reading a brief, a judge should get a feel for what the case is about, why it deserves close consideration, and why the decision should be made in your favor. An appellate lawyer must devise arguments that will get a court’s attention, and then present them in a readable way to a panel of judges who may know little about the area of law at issue — but who do not want to be told at length what an appeals judge probably knows well already. All of that is, of course, much easier said than done.
The scope of argument
The scope of argument on an appeal may be wider than when arguing the law to a trial judge. This is because appellate court precedent that might be binding on a trial court is not absolutely binding on a different panel of the same appellate court. In appropriate cases, appellate court precedent is open for reexamination and critical analysis in a way that would be inappropriate in front of a trial judge.
In addition, an appellate argument can advance policy reasons why you should win. It should identify legal values that would be furthered by a decision in your favor. Unlike trial judges, appellate judges are not just in the business of “managing results.” Their role is also to promulgate an orderly and consistent set of legal rules and principles. The case you are arguing is part of a tapestry that is woven every day throughout the appellate system. An effective appellate advocate should show why the bigger picture requires a particular result.
Appellate law also provides the opportunity to present much longer written argument than is permitted in trial courts. Sometimes, the complexities of a case warrant this. Often, though, lawyers make the mistake of using up their word-count entitlements when a shorter and more focused argument would have been more compelling.
Regardless of how long a brief is, a fundamental difference between the appellate process and the presentation of legal arguments to a trial court concerns the amount of time that will be devoted to considering your briefs. In trial courts, this time is often measured in minutes — the style and depth of your argument must take account of this. Trial court judges — at least, those in state court — do not have their own law clerks or research attorneys who work with them in chambers. They have busy calendars, and they do not have the luxury of spending hours analyzing your papers. In appellate courts, by contrast, a good number of hours will be spent by six or more people — research attorneys and law clerks as well as three judges. This allows you to present a more complex argument. It also means that your arguments and recitation of the facts will be much more closely scrutinized.
Research
An appellate lawyer should relish researching the case, as well as arguing it. Legal research and writing are so intertwined that they are best done by the same person. The best written brief will be useless if the research was substandard. A lawyer who does not enjoy legal research is probably not cut out for appellate work.
Researching an appellate brief involves setting aside large blocks of times without constant interruptions. It is a creative process — and it inevitably involves exploring different theories, some of them dead-ends, before settling on those that are most compelling. It is a process that is at times more scholarly than businesslike.
Oral argument
Oral argument in front of a panel of appellate judges is short and often intense. Typically, each side argues for less than 15 minutes.
In the California Court of Appeal, the judges have usually already come up with a draft opinion before oral argument (although, in most courts, its contents will not be known to the parties). It is rare that oral argument turns around a panel of judges from one outcome to another. But it’s not unusual for oral argument to affect the detail in an appellate opinion.
Sometimes, lawyers find it hard to know what they are meant to say at oral argument. This is because, on the one hand, judges disfavor oral arguments that merely recite the briefs, but, on the other hand, they also disfavor using oral argument to raise entirely new issues that were not in the briefs. It can be something of an art to develop an oral argument that takes account of both of those constraints.
Oral argument is not an opportunity to compensate for an inadequate brief. Rather, it is a chance to highlight and simplify the most cogent points made in the briefing and, perhaps, to iterate a thematic, human message that brings the brief to life.
Most important, though, oral argument is an opportunity to respond to what may be on the judges’ minds. Ideally, the presentation is not in the form of a monologue, as with an argument to a jury. Rather, it should involve a dialog in which a lawyer — after beginning to make an argument — is interrupted and has to respond to pointed legal questions from sharp minds on the bench.
One of the worst mistakes is not to focus on the judges’ questions but, instead, to appear eager to return to a prepared argument. A cardinal rule of oral argument is to focus on those points that the judges want you to talk about, not on what you came to court to talk to them about.
Sometimes, however, the judges show little or no interest in asking questions. When this occurs, it is best to keep the oral argument very short. The lack of questions doesn’t necessarily mean that the judges aren’t interested in your case, nor does it signify anything about whether they agree with your side or not. It just means that they “get” the case and don’t really need to hear more.
In federal court, oral argument is by invitation only — so the fact that it takes place at all means that the judges do want to hear it. In state court, however, the parties have a right to oral argument. As a result, oral arguments are more likely to be met with silence in state court than in federal court.
Appellate procedure
Finally, a thorough knowledge of appellate procedures may not be the most glamorous part of the process, but it is an essential one. The rules governing the appeals process are complex — and are made doubly so by the fact that separate sets apply to state and federal court. Not following the rules — missing a filing deadline, for example, or producing an incomplete record — can be fatal to an appeal. Obsession with detail goes a long way in the appellate process.
Conclusion
Whether you are bringing or defending an appeal, you should be represented by someone with the skill set just described. Moreover, you should be represented by someone who does this type of work all the time, keeping their skills sharp. The surest way of ending up with such a lawyer is to pick an appellate specialist.