An archive of Howard J. Bashman's monthly columns about appellate litigation, with other of his writings thrown in for good measure
Ten Tips for Excellence in Appellate Advocacy
By Howard J. Bashman
Monday, May 14, 2001
When I began my judicial clerkship in August 1989 for the Honorable William D. Hutchinson of U.S. Court of Appeals for the Third Circuit, I expected that the briefs that I would be reading would range in quality from good to excellent. Of the nearly 300 appellate briefs that I read in those two years, only very few were excellent. Most of the briefs were at least somewhat helpful, but far too many were entirely unhelpful. Often, the unhelpful briefs provided their target audience -- appellate judges and law clerks -- with no idea of what the case was about or what the trial court did that was wrong or right.
At oral argument, most lawyers knew enough not to inflict too much harm upon their cases, but only a few were so good that they actually improved their chances of winning on appeal. More than a few lawyers harmed their prospects of winning, either by conceding away too much of their case or by incurring the ire of the appellate judges for failing to answer the court's questions in an honest and direct manner.
After my clerkship ended in August 1991, I began working as an appellate lawyer in private practice. Since then, I have written nearly one hundred appellate briefs and have delivered many appellate oral arguments. I have also read hundreds of other appellate briefs and have seen a large number of other appellate oral arguments. Based on that experience, I offer the following ten tips for excellence in appellate advocacy.
1. Win in the trial court, but if that is not possible be certain to preserve the trial court's errors for appeal.
Nearly 80% of all appeals decided on the merits in the federal appellate courts result in an affirmance of the judgment or order on appeal. Thus, if you want to win on appeal, it certainly helps to have won in the trial court. Because no lawyer wins every case, be sure to preserve arguments and objections in the trial court that you may need to raise on appeal if your client loses. "It is axiomatic that a party who fails to object to errors or to raise issues at trial waives the right to complain on appeal." Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 116 (3d Cir. 1992), cert. denied, 507 U.S. 1005 (1993). Some of the rules governing the preservation of error for appeal are quite complex to navigate, but the penalty for not obeying those rules - no appellate review - is severe.
2. Appeal only from those orders and judgments that are appealable, and do so in the time allowed.
Attorneys commonly appeal from non-final orders even though no statute or rule confers appellate jurisdiction. Krueger Assocs., Inc.
v. American Dist. Tel Co.
, 247 F.3d 61, 65 (3d Cir. 2001). In the absence of an actual final judgment, appellate review may be available if an order meets the stringent requirements for mandamus review, is an appealable collateral order, or if the trial court properly certifies the order under Fed. R. Civ. P. 54(b), 28 U.S.C. § 1292(b) or their state law counterparts. If the trial court has granted or refused to grant injunctive relief, the losing party can appeal pursuant to 28 U.S.C. § 1292(a)(1) or its state law counterpart. The Third Circuit's ruling in Ross
, 916 F.2d 898, 902 (3d Cir. 1990), purports to prohibit appeals from all orders denying injunctions unless the appellant can demonstrate irreparable harm, but the Third Circuit sitting en banc should overrule Ross because it is contrary to 28 U.S.C. § 1292(a)(1), which expressly permits interlocutory appeal from those orders that directly deny an injunction. Determining whether an appealable order exists can often be difficult, and when in doubt it is better to err on the side of appealing, but far too many appeals are taken in the absence of any reasonable basis for appellate court jurisdiction.
3. Raise and argue the right issues and the right number of issues.
While appellate courts may undertake to reach the correct result regardless of the issues the parties have raised when pro se litigants are involved, Osei-Afriyie
v. Medical College of Pa.
, 937 F.2d 876 (3d Cir. 1991), in cases where the parties have counsel, appellate courts usually resolve only those issues that the lawyers have raised. Experienced appellate advocates agree that raising too many issues on appeal hurts, rather than helps, the appealing party. Raising one to four issues on appeal is best; raising a few more issues than that is acceptable when absolutely necessary. In United States
, 693 F.2d 286, 287 n.1 (3d Cir. 1982), the Third Circuit endorsed Circuit Judge Ruggero J. Aldisert's statement that "when I read an appellant's brief that contains ten or twelve points, a presumption arises that there is no merit to any of them." It does not suffice merely to raise an issue; be sure also to include argument on the point in the argument section of your brief. Travitz
v. Northeast Dep't ILGWU Health & Welfare Fund
, 13 F.3d 704, 711 (3d Cir.) ("When an issue is not pursued in the argument section of the brief, the appellant has abandoned and waived that issue on appeal."), cert. denied, 511 U.S. 1143 (1994).
4. Know and observe the appellate court's rules.
Whether you spend nearly all of your time at work handling appeals, as I do, or handle appeals only occasionally, you must learn and follow the rules of the appellate court in which your case is pending. These rules govern, among other things, the color of a brief's covers, the required content of the briefs, the typeface and word or page limitations, when and how appellate briefs must be filed, and what the appendix on appeal can and cannot include. If you do not review and understand these rules, you are asking for trouble.
5. Your appellate brief should be clear, concise and persuasive and should rely on good law; the brief should not be bombastic or abstruse or personally attack opposing counsel or the trial judge.
Nothing is more important to the success of your case on appeal than your appellate brief. If the brief fails to explain in a convincing fashion why your position is correct and why your adversary's position or the trial court's ruling is erroneous, you will not win the appeal. Admittedly, appellate judging involves more than reading adversarial briefs and ruling in favor of the party with the better brief. But lawyers whose appellate briefs fail to explain clearly and convincingly why their client deserves to win on appeal, and why the trial court's rulings were wrong or right, decrease the client's chances of winning and complicate the appellate court's effort to reach the right result. Given how important it is to prepare the best appellate brief possible, you should write your brief well in advance of the filing deadline, leaving plenty of time for review, editing, and creation of the necessary tables and certificates.
6. Get outside help.
The insights of an experienced and effective appellate practitioner can be invaluable in deciding what issues should be raised on appeal and how best to argue those issues to obtain the best possible result for the client. No one may know the case or the governing law better than the trial lawyer. But, in order to win on appeal, you will need to persuade appellate judges who themselves have no preexisting knowledge about your case and often have little if any experience with the controlling law. An experienced and effective appellate practitioner can assimilate what the trial lawyers know about the case and present even the most complicated legal and factual matters to appellate judges in the brief and at oral argument in a manner that is both easy to understand and persuasively reasoned. Highly qualified appellate practitioners do not want to take your client from you or control the case on remand to the trial court; rather, they want to work with you to ensure that your client gets the best possible result on appeal. A fresh set of eyes can help even experienced appellate lawyers. After I write an appellate brief, I ask a colleague in my group who has not worked on the case to read the brief to make sure that it conveys the facts and legal arguments in a manner that is clear, concise and convincing. Unless the appellate brief persuades someone who knows nothing about your case that your client deserves to win, the brief is useless.
7. Get the law right.
Appellate courts depend heavily on the parties' lawyers to explain what the law is and how a ruling will fit into or alter the existing legal landscape. If you cite a case for a proposition, make sure that it supports the proposition and provide a pinpoint cite where the judge or law clerk can easily find the language on which you rely. During my clerkship, I would encounter all too frequently briefs that cited cases for a proposition that could be found nowhere in them. Appellate judges detest string citations. And, of course, do not cite to cases that have been overruled or seriously undermined by other cases. There is no alternative to getting the law right in your briefs and motions on appeal.
8. Cooperate with opposing counsel to determine the contents of the appendix.
Attorneys who do not regularly handle appeals usually begin focusing on the appendix just days before the appellant's opening brief is due. The rules, however, require counsel for the appellant to confer with counsel for the appellee far in advance of that deadline to agree on the contents of the appendix. When this process is followed, the appellee will not need to file a supplemental appendix. When this process is not followed, the appellate court likely will conclude that counsel for appellant failed to understand and follow the rules of appellate procedure. The rules also specify what can and cannot be included in the appendix. Efforts to include prohibited materials are unlikely to succeed. In re Capital Cities/ABC, Inc.'s Application for Access to Sealed Transcripts
, 913 F.2d 89, 96-98 (3d Cir. 1990).
9. Learn about the court in which your appeal is pending and about the judges on that court.
Most appellate courts today have Internet sites that allow access to the courts' opinions. It is helpful to learn early in the process whether the court in which your appeal is pending tends to issue lengthy, detailed and scholarly opinions or usually issues short, desultory decisions. If you have never given oral argument before the appellate court or a judge on your panel, attend an argument earlier in the day or week to observe.
10. At oral argument, be prepared not only to emphasize your strongest points but also to deal straightforwardly with your case's greatest vulnerabilities.
Oral argument represents your final opportunity to dispel any doubts the appellate judges may have about ruling in favor of your client. Appellate judges are not reluctant to hone in on a party's weakest points during its counsel's presentation. You must be prepared not only to emphasize your client's best arguments but also to respond persuasively and concisely to questions about your case's most significant weaknesses. You should begin reviewing the briefs, the relevant law and the appendix far in advance of oral argument, so that you can identify your case's weak points and think carefully about how best to address them at oral argument.
This article is reprinted with permission from the May 14, 2001 issue of The Legal Intelligencer © 2001 NLP IP Company.