An archive of Howard J. Bashman's monthly columns about appellate litigation, with other of his writings thrown in for good measure
Federal and State Appellate Judges Give Advice on How You can be Most Effective in Briefing and Orally Arguing an Appeal
By Howard J. Bashman
Monday, November 10, 2003
Senior Third Circuit Judge Ruggero J. Aldisert recently published the Second Edition of his book "Winning on Appeal: Better Briefs and Oral Argument." The book is indispensable to any lawyer who handles appeals, and one of the book's many very useful features is advice from federal and state appellate judges on how best to brief and orally argue appeals.
After all, who knows better than the appellate judges what it takes to win or at least make the best possible presentation on appeal? In the words of the very first section of Judge Aldisert's book, "Judicial fish are explaining to lawyer anglers how to catch them."
As an adjunct to this monthly column, I operate a Web log that provides coverage of developments in the state and federal appellate courts across the nation. Nine months ago, I added a monthly feature in which I interview federal and state appellate judges. In the spirit of Judge Aldisert's book, I have asked many participants in my monthly interview feature to offer advice about how lawyers could do a better job when briefing and orally arguing an appeal. Here is some of what those judges have had to say.
Senior Eighth Circuit Judge Richard S. Arnold was my November 2003 interviewee, and he opined: "Many briefs are ungrammatical and poorly proofread. These are elementary respects in which briefs could be improved. Also, the statement of facts is the most important part of the brief, because it is the part of the case about which the judges know least. It should receive more emphasis. Oral arguments should get to the point. The time is short. Don't be irritated with judges who ask questions. You may hear something that is the key to your case."
Eleventh Circuit Judge Stanley F. Birch, Jr. explained that often advocates spent too much time in briefs focusing on what the judges already know and too little time providing information that would help the judges the most: "The truly outstanding briefs are those that succinctly and with straight-forward clarity relate the existing law to their case. Too much time is spent, even in good briefs, reviewing legal principles with which most judges are familiar.... I have waded through pages chronicling the shifting burdens in an employment discrimination case only to be presented with a couple of paragraphs relating all of that law to the facts in the case on appeal."
With respect to oral argument, Judge Birch opined: "In our circuit oral argument is typically a question and answer session. Accordingly, knowing the record inside out, being prepared to cite 'your best case' for a legal proposition key to your arguments on each issue, and an ability to get to the core of your opponent's arguments and refute them would serve a presenter well in our circuit."
Judge William Curtis Bryson of the U.S. Court of Appeals for the Federal Circuit is one of the most experienced appellate litigators currently serving as a federal appellate judge. On the subject of brief-writing, Judge Bryson explained: "the value of clarity and economy of expression cannot be overstated. Sometimes I think lawyers assume that judges are going to spend as much time studying the briefs as the lawyers spend writing them. They aren't. Just look at the numbers. In a typical sitting week, a judge on our court will have, perhaps, sixteen argued cases and another eight submitted cases. We sit every month, and I spend the first week and a half to two weeks of each month working on opinions. So that leaves a week to a week and a half to read briefs in preparation for the week of sitting. That means I have five to seven working days to read and digest 48 briefs, not counting reply briefs.
"A dense, 60-page brief that is hard to plow through is not a very welcome sight in the middle of that process. It would be lovely if we had only four or five cases to prepare for each month and could devote days to each one, but there is no appellate court in the land that has that luxury. You can imagine how refreshing and effective a lucid, simple, nonrepetitive presentation can be in that setting."
With respect to oral argument, Judge Bryson explained: "The thing that most surprises me the most about oral arguments is how unprepared lawyers are. By and large, the judges on our court prepare pretty thoroughly for oral argument (my experience is that the same is true of other federal appellate courts as well). As a result, a lawyer's lack of preparation sometimes has the awkward consequence that the lawyer knows less about the case than the judges do.
"We have had stunning instances of lack of preparation in cases before us, such as the failure on the part of one lawyer to have read the case on which the other side principally relied or, on many occasions, the failure to anticipate questions that are so obviously presented by the case that two or more of the judges trip over themselves asking the same question at the outset of the argument. All I can conclude is that people just don't appreciate the need for preparation or don't understand the kind of preparation that is necessary.
"In particular, lawyers do not seem to prepare by examining their own positions critically. I frequently see lawyers react with surprise and annoyance when the judges begin to ask questions that suggest some skepticism about the lawyer's position. Some of those lawyers become combative and surly rather than leaping to the opportunity to engage the court. I suspect that reaction comes from the lawyer's never having really thought critically about the weaknesses in his or her own case. The judges are not likely to ask about the strong points in your case; they will ask those questions of the other side. It is the weak points that you need to concentrate your efforts on, yet I think many lawyers don't do it."
Eleventh Circuit Judge Gerald Bard Tjoflat explained his approach to oral argument: "My purpose is to get to the bottom of the case -- to dismantle the case, to squeeze it down to size. Too many cases -- especially civil cases in which the issues have been framed by notice pleading -- come to us in a state of disarray because the district judge failed to narrow the issues. Lawyers should be mindful that a court of appeals engages in two discrete functions: correcting trial court error and law making.
"When the thrust of an appeal is that the trial court erred in the manner in which it conducted the pretrial proceedings or the trial, we need to know the record intimately; only then can we determine with confidence whether an error prejudiced the appellant's 'substantial rights.' Nothing is more frustrating for an appellate judge than being confronted by counsel who do not know the record. Knowing the record is vital; yet, many lawyers are unable to tell us during the course of an argument whether, for example, they objected to the jury instruction they are challenging on appeal.
"When the appeal involves the trial court's application of the rule of decision and asks the court to fashion a new rule of substantive law, we need all the help we can get. We are looking for a sound rationale, one that could command the respect of the legal profession and in some cases the public at large. I expect appellate counsel to have thought about this before putting pen to paper. Counsel’s brief should contain the ingredients of a good opinion and the oral argument should expound on the same theme. In questioning counsel in such cases, I am testing counsel's rationale -- to determine whether it makes sense."
Mississippi Supreme Court Justice Kay B. Cobb offered some useful advice about brief-writing: "First, keep it simple. That’s hard to do, especially in more complex and difficult cases, but it's worth the effort. Organize it logically, generally with your most favorable and crucial issues addressed first. Spend the time necessary to reduce the key points to simple statements. Remember that you can write a brilliant and scholarly brief, but if it's too difficult to follow, you may lose your reader's attention and focus. Outline your theory clearly and concisely at the beginning, in simple terms.
"Second, make it easy to read. We don't have any absolute restrictions (other than number of pages) as to how you present your case on paper, but it's not a good idea to crowd as much as you can onto the allotted number of pages. One of the most effective briefs I've seen was written by a former member of this Court. It was in slightly larger than normal type, using a font with clear, block letters. He used indentions, bold face type, italics, etc. to make his main points stand out. He provided the law, but did not belabor the analysis of the cited cases. What a refreshing change from extra-long sentences filled with too many adverbial phrases, and pronouns which leave you guessing which 'him' or 'her' is being discussed.
"Third, don't be disingenuous with the Court. We do read the briefs, and the cases cited. If counsel stretches the truth, or cites cases for propositions which are simply not to be found in those cases, then his or her credibility is lost. It's hard, then, to take seriously the remainder of the brief, after discovering one or two of those kinds of 'mischaracterizations.' It certainly can jeopardize your client's case."
Finally, with respect to oral argument, Fifth Circuit Judge Jerry E. Smith offered the following advice: "Know the record cold. Remember that you're talking to judges, not jurors. Remember the proper standards of review, and don't attempt to re-try the whole case at the appellate panel. Know when to yield ground on less important issues, and be ever candid with the court. Strike a conversational, not hortatory, tone. Go into the argument with the goal not only of winning for your client, but also of helping the court do its job of rendering a respectable decision that will apply reasonably to the world beyond the immediate parties.
"Don't even think of trying to avoid a judge's question; the judges will always have the last word. Avoid sarcasm, hyperbole, and lofty rhetoric. And finally, don't assume every question is unfriendly; judges can throw home run balls as well as curves."
In the months ahead, various other federal and state court appellate judges have agreed to taking part in my Web log's monthly online interview feature, including First Circuit Judge Bruce M. Selya, Sixth Circuit Judge Boyce F. Martin, Jr., Seventh Circuit Judge Richard A. Posner, and Ninth Circuit Judge Stephen Reinhardt. I look forward to seeing what they will have to say about how attorneys can improve their brief-writing and oral arguments on appeal.
This article is reprinted with permission from the November 10, 2003 issue of The Legal Intelligencer © 2003 NLP IP Company.