APPELLATE PRACTICE

Opening:

Appellate practice is a distinct discipline – a “last chance” to undo an

unfavorable judgment or to preserve a hard-fought victory. Appellate
attorney works to secure reversal of the adverse decision.    It involves
different skills and strategic considerations than trial practice.

The challenging part of appellate law is that you start with a case that has
already been unsuccessful once in the lower courts. Your job is to come
from behind and earn something for your client, whether it is a new trial, the
client’s freedom, or something in between.

In formulating the issues on appeal, an appellate lawyer conducts thorough

legal research; presents the facts and those issues and arguments
selected for appeal concisely in a persuasive appellate brief.    Appellate
lawyers collaborate with trial counsel on strategic and tactical matters to
raise all applicable arguments and make the appropriate trial record,
identifying and preserving legal issues as they arise and crafting effective
motions on substantive legal issues – before, during, and after trial.
Therefore, involving an appellate lawyer in a case as early as possible is
important to ensure the best chance of success both at trial and on appeal.
[https://bestlawfirms.usnews.com/appellate-practice/overview];

Although all cases are initially tried at the trial court level, the losing party
may appeal his case to higher courts known as appellate courts.

An appellate attorney concentrates his practice on advocating cases before

the Court of Appeals, including the Supreme Court (see Rules on Appeal).
Appellate attorneys seek to correct errors of trial court judges by
persuading appellate court to overturn the lower court decision or to
expand or change the interpretation of statutory law or the application of
jurisprudence.

As part of the Job, Appellate attorneys are duty bound to review and
analyze trial records and other documents, research and analyze case law
or jurisprudence which is ofcourse applicable to the case being handled,
draft persuasive briefs and appellate documents, advocate in appellate
courts before the appellate judge(s), framing issues and to gather together
the records for appeal because digging into the past to collect information
useful in preparing your appeal brief would be important.

As far as the required Skills is concerned, an appellate attorney must have

exceptional research, analytical, and writing skills which are necessary to
write concise and persuasive briefs, legal memoranda, and pertinent
documents. Other skills include broad and practical knowledge of
numerous substantive areas of law, familiarity with appellate practice, etc.
Appellate practice sharpens research skills and skills that may lead to
becoming a judge one day.

Some Basic Pointers When Making An Appeal.   

1. Making fatal mistake of using a wrong mode of appeal and appellate

jurisdiction.

Technically, a Notice of Appeal is the most important document in any

appeal. A mistake involving the notice of appeal will usually foreclose the
right to appellate review.

It is good practice for both appellants and appellees identify notice of

appeal and jurisdictional errors that can torpedo an appeal before it gets off
the ground.

2. An appeal is not an invitation to recycle trial court pleadings.

We should refrain from recycling the trial court pleadings by adding a new
caption, change a few words, and file it in the court of appeals. Such
thoughts are common among attorneys who do not practice regularly in the
appellate courts. However, good appellate briefs usually look very different
from trial court briefs. Here are a few reasons why.
A trial court’s decision is often influenced by the arguments made by
counsel at a hearing, with the briefs receiving less attention. The opposite
should be expected in the appellate courts. Only a small percentage of
appeals receive oral argument. Instead, most appeals are decided on the
briefs alone.

Your best (and possibly only) opportunity to tell your client’s compelling
story will be your appellate brief.

Appellate briefs also receive significantly more scrutiny than trial court
briefs. Appellate briefs are reviewed—often repeatedly—by multiple
appellate justices. Appellate briefs are expected to contain detailed
citations to both the appellate record and legal authority and / or
jurisprudence.

A good rule of thumb is that every sentence should be followed by either an

appellate record citation and/or a legal citation. Those citations will likely be
verified, with the law clerks conducting their own independent research into
the law and the record. Misstatements of the law or record, erroneous
citations, missing or overlooked legal authority, or defects in counsel’s
reasoning are unlikely to escape this more rigorous appellate scrutiny.

Trial court’s decisions are not binding on the appellate courts. Nor are
opinions of the court of appeals binding on the Supreme Court. A good
appellate brief is mindful of this “change in venue,” updating and refining
legal authority and arguments accordingly.

Conduct your appeals with style.

Use font big enough to be readable e.g. 14pt

Style and formatting of appellate records and briefs are early signals of an
attorney’s proficiency and experience in the field.

Preparation of the appellate record is another area in which style and form
matter. A counsel’s failure to include key documents in the appellate record
can result in dismissal of an appeal or automatic affirmance of the trial
court’s order/decision, e.g. certified true copy of the lower court’s decision.

Trial lawyers sometimes seem to believe that no special talent or training is

needed to write a good brief on appeal thinking that what works before the
trial court is acceptable to an appellate court. We should learn appeal after
appeal is lost, or at least made harder to win, because of ineffective briefs.
Because many lawyers write appellate briefs infrequently.   

The most common mistake made by trial lawyers is to think that they
should do the same thing in the appellate court that they did in trial court.
They write their pleadings in a recycle mode addressing the appellate court
as they would address the trial court.     

Packaging Arguments   
[https://www.mayerbrown.com/en/perspectives-events/publications/no-date/how-to-write-a-
good-appellate-brief]

Note that we have referred to "staying within the rules." That is important.
The rules are the first thing any lawyer must consider before putting pen to
paper — or fingers to keyboard.

A surprising number of prominent litigators fail to read, understand, and

follow the rules that govern appeals. (see Rule 40 to 43 of the Rules of
Court on ordinary appeal)

Observe page limits by not having too many long footnotes. Avoid too long
brief.    Produce an attractive, readable product. Use 1 ½ spacing and
margins of 1.25”.

Our own advice on how to meet page limits is not merely to be brief.
Instead, first write lean prose that makes the necessary points and avoid
excessive repetition.

So much for format and length. What about substance?

Usually the first non-boilerplate item in an appellate brief will be something
called the "Questions Presented" or the "Issues Presented" or the
"Statement of Issues." This section can be critical. It is difficult to
underestimate the importance of clear, effective framing of the issues: In
advocacy, as in life, first impressions last. Unfortunately, many briefs state
the issues in a way that either impairs the author’s credibility or confuses
the court’s understanding of what the appeal is about.

Suppose your case presents a question of whether exigent circumstances

entitled police officers to enter your client’s dwelling without a warrant; the
police argue that they acted to prevent the destruction of drugs that could
be used as evidence.

In such a case, you should not present a question such as "Whether the Bill
of Rights has been suspended as a result of the ‘War on Drugs.’ "

You may, instead want to suggest to the court that the search was
unreasonable and illegal.    The item seized as a result thereof is
inadmissible in evidence being a fruit of poisonous tree.

You can preserve your credibility for formulating the issues on appeal even-
handedly; but there is another challenge: You must also make the
questions comprehensible. If the judges cannot understand what the case
is about from the initial substantive exposure to your writing — a statement
they expect to be clear — they may have far less patience with the parts of
your brief that may legitimately be complex.

A good brief writer can formulate clear, neutral-sounding questions but

frame them in a way that tends (subtly, of course) to suggest the answer
the writer seeks. The question should not present your argument, but it
should express a clear point of view about the case.

No Argumentative Statements

The Statement of Facts should never be argumentative in tone.

In order words, in the Statement of Facts, understated advocacy works

best. A judge will be more prepared to believe that your client should win if
your statement seems objective than if it editorializes. A judge will be more
inclined to accept the fairness of your statement if it acknowledges the
other side’s strongest points and introduces — but does not argue — the
facts or concepts you will later use to counter the other side.

Remember, judges are lawyers, too, who are accustomed to careful

analysis of facts and authorities. If your statement presents your case in a
fair but favorable light, you do not need to carry every argument all the way
to its logical conclusion at that point. You certainly need not drown the
reader in rhetoric.

A closely related blunder is committed by many appellants challenging

adverse jury verdicts. They fail to recognize that the evidence will be
reviewed on appeal in the light most favorable to the verdict — that is, most
favorable to the other side. It may be appropriate to describe both parties’
evidence, but you should never present only the version favorable to you
when that version has been rejected by the fact finder.

Of course, it is essential in the Statement of Facts to describe the record

accurately. An answering brief that can show that you have distorted the
record, or quoted material out of context, or otherwise arguably misled the
court, can be devastating.

This does not mean, however, that advocacy plays no role in drafting the
Statement of Facts. Quite the opposite. Although the tone must at all times
remain neutral and dispassionate, artful selection, emphasis, and
organization of facts can go far to shape a reader’s perception of the case.

The trick for the appellant is to make the reader feel that the statement
presents a fair description of what happened — an account of the material
facts leavened with a recognition of the presumption of correctness that
fortifies the fact finder’s resolution of factual disputes.

In a case involving a plain legal issue, a short factual account may suffice,
followed by a more elaborate legal analysis.

In a fact-intensive case, on the other hand — a challenge to an

administrative agency ratemaking decision, for example — the statement
may need to be much more elaborate.

In general, a reader is unlikely to grow too impatient with a statement that

usefully sets forth relevant facts, even at some length. However, if the
statement seems to be loaded with irrelevant detail — either because it
actually is full of irrelevancies or because it is so poorly organized that the
reader cannot grasp the relevance of what is being said — then it is likely
to receive an unsympathetic reading.

The reader is sure to understand the point and may even have gotten a
smile out of the arduous task of reading a brief.

Another point that frequently crops up with fact-intensive legal issues (for
example, the sufficiency of the evidence to support the verdict) is whether it
is best to recite all the relevant facts in the statement or save them for the
argument.

There is no general rule, but be aware of this: It is permissible to mention

such facts briefly in the statement and then explore them fully in the
argument.

Often such treatment will reduce repetition and enhance the

comprehensibility of your presentation. The section is called the Statement
of Facts, but that does not mean all the facts you rely on must be there.

Turning to a point of general application, you should be especially careful

how you refer to the court or agency below. If you are the appellant or the
petitioner, you are, of course, asking the appellate court to reverse that
court or agency. The appellate court knows that. It knows you disagree with
the outcome thus far. It will reverse in an appropriate case. But its initial
inclination, almost always, will be sympathetic to the fellow judge who had
to sit through the trial or to the agency that had to sift through the entire
record now being selectively quoted on appeal.

Criticism of the lower tribunal therefore should be stated carefully and

objectively (for example, "the trial court did not address the ‘waiver’ issue"
or "the agency’s entire response to this argument was as follows").

The Summary Follows the Argument

Experienced brief writers know that the summary of argument is usually

written after the argument itself. The summary ordinarily should have the
same structure as the argument.

Often, you may wish to begin with some background or table-setting that
will not be repeated in the argument section and therefore is not, strictly
speaking, a "summary" of any part of the argument. In such instances, it is
perfectly legitimate to combine the summary of argument with an
introduction, as long as the combination of "introduction and summary of
argument" is so labeled and does not cause the section to be too long
(more than four or five pages).

Ironically, the most critical section of the brief — the argument itself — is
least subject to general rules or advice. There are two primary
determinants of the quality of the argument section of a brief: (1) the quality
of the arguments available and (2) the analytical and writing skills of the
lawyers involved. Nevertheless, some aspects of writing an argument are
specific to the appellate process.

First, never forget the importance of organization. It is vital to organize, not

only the writing, but also the theory of the case. Appellate judges know that
they are setting precedents. They therefore worry about whether the theory
they adopt in one case will or will not apply appropriately to slightly different
sets of facts. Appellate lawyers should assist the judges by having — and
expressing — clear theories with reasonably clear limits.

It also is desirable to explain the client’s position in a way that makes sense
from a policy (or common sense) perspective. Judges are concerned about
both the institutional and the real-world consequences of the rules they
adopt. Relatively few cases that reach appellate courts are controlled so
squarely by precedent that the judges have no wiggle room. Accordingly,
even if favorable precedent is available and you intend to rely heavily on it,
write the argument in a way that gives the judges confidence that
they should follow that precedent. That is far better than baldly telling them
that they must follow it — and daring them to disagree.

But be careful about policy forays. You cannot just make up the law. Most
appellate judges are offended by briefs that are merely naked policy
arguments and that pay no attention to such familiar judicial guideposts as
case law, statutory language, and (for most judges) legislative history.

If statutory language makes your position difficult, do not hide the statute at
the back of your brief. The court will see such placement as a tacit
admission that the statute cannot be construed your way. The judges may
think you want the court to ignore the statute. If the statutory
language is favorable, you have done your client even more of a disservice
by not beginning with that and telling the judges that Congress has made
all necessary policy choices. "[S]tart out by discussing policy. . . . [I]nstead
of talking about what Congress did, talk about what it should have done."1

An important tactical question that often confronts the drafter of an

appellant’s opening brief is the extent to which the brief should provide
responses, then and there, to arguments the other side may make in its
brief. Should the rejoinders be saved for the reply brief instead?
Remember, anticipating arguments entails some risk, especially if opposing
counsel are weak; you may put ideas into their heads that they would not
otherwise discover or articulate coherently. In general, however, an
appellate brief that tries to hide from the adversary’s best arguments is less
effective than one that confronts them. And, when the point has already
been made by the trial court or argued by your adversary at earlier stages
of the proceeding, you cannot expect to hide. You will almost surely want to
address such hard points in the opening brief, stating the issue in your
terms rather than letting your opponent set the agenda.

Content is not everything, of course. Writing also matters in an appellate

brief and in the argument section especially. The point is not that judges
consciously grade style or decide appeals based on which brief they think
is better written. Rather, it is that judges must understand and remember
your position before they can agree with it — and a stylish brief usually is
more understandable and memorable.

Appellate judges are busy people. There is not always sufficient time for a
judge to untangle convoluted sentences or dense prose. In addition,
typographical and grammatical errors can distract from more important
matters. And, if it is possible to write the brief in a lively fashion — without
making the writing style itself a distraction — the reader is likelier to
comprehend and remember it.

****stp

Here again, heated rhetoric and overstatement are harmful. Perhaps the
most common flaw in appellate briefs is writing in emphatic, unequivocal,
1
Judge Kozinski, in his advice on how to lose an appeal, has written:
and conclusory terms. Such briefs, overconfident, even cocky, in tone and
uninformative in content, are likely to obscure what the judges must really
decide and what analytical steps are needed to reach a sound decision —
especially if the weakness in the argument has been glossed over in an
effort to make the position seem stronger than it is. This is not only
unhelpful to the court, but injurious to the advocate’s own cause. It is far
better to confront the issues coolly, honestly, and logically, guiding the
reader lucidly down a path that leads to victory.

Tone matters too. In a recent, highly publicized criminal case, appellate

counsel did a masterful job of identifying the issues and mustering legal
and factual support for his client’s position. He did so, however, in a self-
righteous tone, overstating accusations of prosecutorial misconduct,
belittling the trial judge, and portraying his client as the victim of a person
who, the jury had found, was herself the victim of the client’s serious
criminal conduct.

The Perils of Overstatement

The lawyer, who is prominently affiliated with an elite East Coast institution,
should have been careful to adopt a respectful tone toward the midwestern
state judges he was addressing. We read the briefs before the case was
argued. We concluded that, if the judges thought the issue otherwise close,
human nature probably would make them want to rule against the
defendant because of his lawyer’s imperious tone. We are not mind
readers, but we do know that the defendant lost on appeal by a 2-1 vote.

The brief of an appellee or respondent — the "bottomside" brief, in the

jargon of appellate practice — has certain special features. The bottomside
brief writer has the disadvantage of not being able to introduce the judges
to the case and the issues; they will read the topside brief first. But there
are advantages too. The party filing second has a target to shoot at: the
appellant’s brief. And, except in cases involving cross-appeals, the
bottomside writer has prevailed below on all of the issues before the
appellate court; that litigant has the advantages that flow from having
already had one decisionmaker agree with its position. The bottomside
party wins if the decision below was right on the merits or ifappellate issues
were not preserved below.
The first item on the checklist of the writer of the bottomside brief should be
to ask: Was each of the arguments now being raised on appeal properly
preserved below? Were alleged instructional errors properly objected to?
Were the grounds now advanced for overturning evidentiary rulings the
same ones offered in timely objections at trial? In a related vein, is the legal
theory urged on appeal the same one presented to the trial court and, if
not, is there an advantage to be gained from the change?

Appellate rules usually give the bottomside brief writer the option of
dispensing with several of the features required in the topside brief. There
is rarely a need to repeat or correct the predictable recitations of the basis
for jurisdiction and the nature of the rulings below. On the other hand, it is
usually worthwhile in a bottomside brief to reformulate the questions
presented and write a competing statement of the case.

Some appellees seem to feel compelled to go further and to tell the court at
the outset that the other side has misstated the questions presented and
tendered a slanted version of the facts. That can be a bad idea. The court
often will know from reading your questions presented and your statement
that you believe the other side’s version is either inaccurate or incomplete;
you waste space and possibly goodwill by adding another sentence with an
accusatory tone. However, if you can demonstrate flat out distortion, and it
concerns something important, do so.

The other major difference between a bottomside and a topside brief is that
the writer of a bottomside brief already knows exactly what arguments are
being made on behalf of reversal. It is therefore appropriate and —
because the appellee gets no reply — necessary to take on those
arguments. This does not mean, however, that the brief should consist
simply of a point-by-point refutation of each of the appellant’s arguments.
The aim of a bottomside brief is not just to debate the other side. There
also must be an affirmative and coherent statement of the reasons why the
decision being appealed is correct.

Having prevailed below can also have its burdensome features.

Sometimes, to put it bluntly, the decision below is bad. It may be difficult to
defend in whole or in part. The topside brief will have mercilessly laid bare
its central defects. The bottomside brief writer then must offer other ways to
reach the same result. Occasionally, it may be wise to abandon the lower
tribunal’s reasoning and substitute a different and better rationale. In
essence, the appellee ends up defending, not the opinion that was written,
but the opinion that should have been written.

Most times, however, it is prudent to defend the lower court’s approach and
offer, in addition, either something explicitly called an "alternative" approach
or an embellishment on the decision below. Of course, there are times
when defending the rationale of the decision below will be the only way to
secure an affirmance. In cases coming from administrative agencies, for
example, the appellate court is not allowed to adopt a rationale that was not
the basis of the agency’s decision; similarly, a court reviewing a jury verdict
may not affirm on a basis never presented to the jury.

A Better Rationale

The recent decision in TXO Production Corp. v. Alliance Resources Corp.,

113 S. Ct. 2711 (1993), represents a triumph of the tactic of presenting a
new and better rationale on appeal. The highest court of West Virginia had
upheld an award of punitive damages that was many times the
compensatory damages; the award was therefore greatly out of proportion
to the actual harm suffered by the plaintiff. The state court had opined that
the case implicated no federal constitutional limit on the size of the punitive
damages on the dubious ground that the defendant had been "really
mean." The Supreme Court’s grant of certiorari suggested likely
dissatisfaction with the West Virginia court’s rationale.

Then respondent’s counsel went to work, scouring the record and

discovering a theory that, although it might have been barely hinted at
before the jury, seemed more likely to persuade the nine Justices in
Washington: The potential gain to the defendant from its alleged misdeeds
much more closely approximated the punitive damages award than the
amount tha t the plaintiff actually lost. Because counsel advanced this
theory in the bottomside brief (and argument) and showed to the
satisfaction of the necessary number of Justices that it had been preserved
below, the West Virginia court’s judgment (but not its reasoning) was
upheld.

Finally, what about reply briefs? They are optional, but it is the rare case —
if any case at all — in which it makes sense to forgo the opportunity to file
one. One of us once argued on behalf of the government a Supreme Court
criminal case in which the petitioner simply did not bother to file a reply
brief. The Court decided the case 5-4 in the government’s favor, with the
unusual coalition of Justices Brennan, Marshall, Scalia, and Kennedy
dissenting. It would be easy to believe that the government’s sterling
written and oral advocacy assured the result no matter what the other side
did, but one must wonder whether an effective reply might have swayed
one of the Justices who formed the tenuous majority. It is a mystery why
counsel passed up the chance to have the last word in such a close case.

The reply brief must be (relatively) short, (relatively) punchy, and selective.
Sometimes it will follow the same structure as the opening brief, but
sometimes it will not. What it must do, to be effective, is identify from the
start one or more overall themes in the argument or arguments with the
best chance of winning and explain to the court where the appellee’s brief,
which it just read, went fundamentally astray.

The function of a reply brief is to respond to an adversary’s arguments. The

court can look back to your opening brief as a reminder of the overall
structure of your argument and to answer nagging questions. It is therefore
usually unnecessary to retrace all the steps of your logic in the reply brief,
and it is far more acceptable in a reply than in an opening brief to
concentrate on sharply focused (but polite) debate. Sometimes, however,
your adversary may have confused things so much that re-emphasizing the
structure of your arguments will be the most useful thing to do in reply.

If you must put a rhetorical flourish somewhere in your briefs — and

sometimes that may be useful — the beginning or end of the reply brief is
the place to put it. Rhetoric turns appellate judges off when they see it as a
substitute for analysis. By the time they read your reply brief, however, the
judges should know that you are prepared to analyze — and have analyzed
— the issues fully. Having, in a way, paid your dues, you have more leeway
for a catchy phrase or metaphor at the beginning of the reply brief. This
may help dramatize the central defect in the adversary’s brief, which the
judge will have just read; such a phrase at the end of the reply brief may be
the last word the judges read before they put down their papers.

Do not strive to write a pithy ending for its own sake, however. Litigation
gives its authors and editors a style sheet that advises: "Formal
conclusions are not worth the trouble. Start at the beginning, go to the end,
then stop." The same goes for reply briefs.