This article focuses on what not to do if you wish to prevail in an appellate matter. Part of this is, unfortunately, the painful lessons learned from experience. Other observations here are derived from listening to appellate judges discussing their observations about what irks them most. I write in the sincere hope that your own appellate efforts will be more successful by avoiding the following.
Wait Till the Last Minute
Appellate writing is a distilled product. Because everything in the brief (the preliminary statement, what is included in the record and how the record is organized, the framing of the issue, the statement of facts, etc.) all need to be harmonized to reinforce your argument on appeal; the process simply takes time. Framing the issue, which is perhaps the most important decision you'll make, is a painful process because you have to "murder your darlings" and look coldly at what precisely is the issue you want the appellate panel to decide. One final thought is that if you want client input or the thoughts of a colleague or friend, you need to give them time to read the draft and to comment upon it. The process of refining and sharpening simply cannot be done in a hurry.
Count on Oral Argument to Carry the Day
Time and again appellate judges are asked whether oral argument makes a difference, and the normal answer is that: (a) it can in the rare case; (b) it can also sink an appeal; and (c) in most cases, oral argument really does not affect the outcome. I believe that oral argument can make a difference, but if the panel isn't "warmed up" by a well-written brief, the likelihood that you can convince the appellate panel of your cause by pure brilliant oral advocacy is greatly unlikely. Bear in mind that in an increasing number of cases both the New Jersey Appellate Division and the United States Court of Appeals advise that they are going to decide the matter without any oral argument.
Don't Waste Time Framing the Issue
Gerry Spence, a great trial lawyer, said once that "if you allow me to frame the issue, I can win every time." Although he was addressing trial practice, framing the issue is perhaps even more critical on appeal. Appellate practice is rarely based upon raw emotion, but rather it is about the issue and how the law applies to that issue. I strongly recommend reading Bryan Garner's "The Winning Brief," which is a great resource. Chapters 8-10 address defining the issue and then stating it succinctly. As I cannot state the matter better than Garner has done, I respectfully refer you to his book.
Argue the Facts
Because trial courts are given great deference on determinations of issues of fact (and juries even more), challenging the facts and attacking the incompetence of the trial court judge is simply not a winning strategy. Yes, in the rare case you have no choice and must attack abuse of discretion on determination of a fact. But, that is the rare case. Be selective because the area where you are clearly most likely to get a fresh read from the appellate panel is on an issue of law.
Be Repetitive
Having discussed "pet peeves" with many appellate judges, one of the constant complaints I hear is that appellate briefs are too long and too repetitive. Make your point once and make it powerfully. The fine point here is that you can reinforce your argument by pointing out multiple reasons why your theory of the case must be right and why your adversary is wrong. Several appellate judges have noted that it is condescending and insulting to their intelligence to make the same point repeatedly—they can read and they got it the first time.
Use Long Block Quotes
Thomas Edison had the same statement posted on every room of his facility in Edison, New Jersey: "There is no expedient which a man will not go to avoid the labor of thinking." A long block quote reflects the inability to pick out what is essential. Consider what you really need from that incredibly long block quote,; use precisely what you need and nothing more. If you fail to select what's important, the long block quote dilutes the power of what you need. Don't let the reader lose the legal tree for the forest.
Raise Every Issue Shotgun Style
E.B. White once said of good writing that you have to "murder your darlings." Because appellate writing is distilled, it is essential to focus on what is the real issue—the issue that captures the essence of why you are right and why your adversary is wrong. A great brief writer struggles with framing the issue. Part of picking the issue is also removing the matters that are not the issue. Be cold-hearted with your own writing, and pick the issue that will win. Kill the ones that are a poor image of the issue or that are merely corollary.
Ignore the Standard of Review
The standard of review is not a technical nicety. It is polestar by which you must steer the facts. The most common standard of review is abuse of discretion regarding factual determinations and de novo on issues of law. If the matter below was decided on a motion to dismiss or summary judgment, however, the trial court may be entitled to no deference at all. Beware that the standard of review may be mixed because the issue on appeal may be a mixed question of fact and law.
Add the Facts You Failed to Add Below, or Misstate the Facts
A lawyer's reputation is his or her stock in trade. Although this is a quaint adage from the past, I believe it whole-heartedly. I note this because in a close appeal the appellate panel will consider everything (the facts, the briefing, the arguments of counsel), and one way to lose credibility for you and your cause is to add facts to the record. There are multiple ways in which appellate counsel can reach outside the record, but do it openly and advise both your adversary and the court that you are doing so.
Misstating the facts is simply unforgiveable. You must be scrupulous in stating the facts accurately and citing to where in the record those facts are reflected. Scrub and clean anything that could potentially mislead the appellate panel. If the appellate panel knows that you have the facts wrong, you've likely lost the appeal but, as importantly, you have injured your reputation at the bar. In the event that your brief states a fact inaccurately (or it is overstated), own up to it, because if you fight the obvious error, you may not recover credibility before that panel.
Rely Upon More Pages to Really Get Your Point Across (Be Repetitive)
It takes great courage to write a short brief. We are afraid that the court will miss the point or that our client will be offended that we didn't harp on every error. By being brief and concise, you are really highlighting what is important. A lengthy brief typically reflects the inability to separate wheat from chaff. The corollary problem with a lengthy brief is that by focusing on everything, you are really focusing on nothing. Be brave, be brief. (Notably, there is at least one kind of brief where a full-length brief simply is the only choice, and that exception is a brief showing a course of conduct or some other fact-intensive analysis.)
Conclusions Are Boilerplate
"For the foregoing reasons, ...." If you're not going to spend the effort to think for five minutes about why the court should rule in your favor, then simply leave the conclusion out. Conclusions are not a vestigial appendage; they are a great opportunity to state in one paragraph why the court should rule in your favor.
Conclusion
Occasionally a truly gifted appellate writer can turn an ordinary appeal into a page-turner. Unfortunately, most of us have more humble aspirations of at least not putting the appellate panel to sleep. After speaking to a number of appellate judges on the New Jersey state and federal courts, I believe that the bad practices identified here neatly encapsulate the complaints I hear most frequently from our colleagues sitting on the appellate bench. Frame the issue, sharpen your argument, and have the courage to go right for the jugular.
Originally published in the July 22 issue of the New Jersey Law Journal
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
