You get the electronic case filing notice reminding you of your oral argument. It is the email you have been waiting for to see who is on your panel. Two names you recognize – circuit judges you know from past appearances. But, there is another name that you’ve never seen before – a district judge sitting by designation. Now, before you launch a full-blown investigation that would qualify you to become an FBI special agent, read the advice here.
District judges may not seem like the most obvious source of appellate practice advice, but given the frequency with which district judges sit by designation on circuit courts of appeals, combined with their unique perspective concerning missteps in the trial court that may lead to appeal, they are a wealth of information that should not be ignored. For this article, several district judges agreed to chat with me and give you their best advice for your appellate practice. Some have been on the bench for decades and others only a few years. Some have sat by designation more than 20 times, and others only a few times. Although not all judges think the same way, their advice was resoundingly similar. In a nutshell, the judges advised: Be prepared, and help me (the judge), help you (the lawyer).
Argument and Advocacy:
- Answer the question. Seriously. ANSWER THE QUESTION. Be honest. Be direct. AND ANSWER THE QUESTION. Unless, you don’t know the answer – then say you don’t know. You should not start to answer and eventually get to a final answer only after walking through the forest and the trees. It is okay, and preferable, for you to pause and consider whether the answer can be answered with a yes or no, and then proceed.
- Know what you want – and ask for it clearly. Be sure to reiterate it before you sit down.
- Concede when you have to. It helps build your credibility on other more important issues. And, in the same vein, be honest about your position. Don’t pivot simply because you see that you’re losing.
- The best advocates are those who know the law, know the facts, and know the weaknesses of their case and the strengths of the opposite side. But, the very best advocates are those that know all those things, and are there to have a conversation with the judges and help them come to the correct decision. The delicate balance between advocate-to-the-client and advisor-to-the-court is what makes the most compelling lawyers successful.
- District judges deal in facts, day in and day out. For that reasons, facts matter and focusing on the facts, in making your argument and case comparisons, resonates with district judges. Just as facts drive the decisions at the district court level, the facts often drive the decisions for district judges at the appellate level.
- Most practitioners don’t realize that oral argument is more about the judges and attorneys and less about the case itself. If a case is going to be argued, it means that at least one judge had questions or wanted argument. That judge may be using the argument to convince the other judges of their position. Don’t be surprised if you see a judge using you as their advocate to the other judges.
- If you’re the appellee, listen to the questions that the panel is asking your opponent. Tailor your remarks to those concerns. While you should have a prepared outline to guide your comments, you should not have a complete soliloquy to deliver. Also, your comments don’t necessarily have to track your brief. Think about: Why should I win? Why would the judges hesitate to rule in my favor? What is the real-life effect of this decision on my case and others like mine? Then, tailor your comments to answer those questions.
- Also, if you’re the appellee, correct any misstatements of relevant facts made by your opponent and include a citation to the record. It increases your credibility, and also helps the judges when they start to write the decision.
- Know your record, and talk to your trial-level colleague to get answers to questions you can anticipate. The worst possible response to a question about what happened at the trial level is, “I wasn’t the trial attorney.” You can expect that the judges did not read the whole record, but rather only parts that were flagged by the briefs, the law clerk, or the judge’s own analysis. You should be prepared with record citations for salient and critical points to support your argument, and refute your opponent’s argument.
- Do not insist that another case is “exactly” like your case when it is easily distinguishable on the facts. District judges deal in facts and can easily distinguish cases. Binding cases should drive your analysis and advocacy, but be cautious to not over-analogize with unidentical cases.
- Be sure to mention the effect the panel’s decision will have. Emphasize the positive effect that a favorable decision will have on your client, some segment of society, or the Constitution. District judges get to see the effects of appellate decisions at the “real-life” level, so are likely to be more receptive to arguments about the effect of their decisions.
- Be careful about “policy” arguments. For most judges, policy is a congressional issue. But, you may talk about reasons behind the statute – e.g., what was driving the decision-making process – to help the judicial decision-making process be consistent with that.
- Don’t feel compelled to use all of your time. Read your audience. If the judges are vibing with your argument, and have no questions, make one to two non-controversial points and then sit down. Too many lawyers have snatched defeat from the jaws of victory by talking too much.
- If you’re going to launch that background check into the district judge sitting by designation on your appellate panel, start with Google, but also check Westlaw and Lexis. Reading prior decisions of your district judge, (and circuit judges, too) will give you a good idea of the mindset of that judge. But, don’t use the information you gain to openly pander to the judge. Use it to frame your argument by homing in on those areas of interest.
- Finally, dress and conduct yourself appropriately. You want the focus to be your argument, not your outfit. And please, please, please, don’t turn around and wave to your client. Apparently this has happened more than once and to more than one judge. Really, who does that!?
Of course, you can’t go back and revise your brief after learning you have a district judge on your panel. But, all of the judges with whom I spoke had great advice to incorporate, regardless of who is on your panel.
- Revise your factual statement and use it as a beginning point of your advocacy. You should aim to tell the full story, but focus on the strongest points of your case.
- Re-read Strunk and White’s Elements of Style and conform your writing to those suggestions. Remember, adjectives and adverbs are qualifiers that add nothing. Make your advocacy strong without those throw-away qualifiers.
- Write your brief, and then step away from it for a few days. When you come back to it, change the font size to make it bigger and read it out loud – to another human being if possible. If the brief doesn’t “read” well, it won’t land well.
- Page limits are not aspirational goals. No matter what you have to say, say it with 10% fewer words. On top of that, in the editing process, aim to cut your word count by another 10%. This will tighten your brief, and force you to distill your arguments to the very best points.
- If you’re talking about an area of law that is not always on the judge’s radar (and it might not be obscure to you – I’m looking at you tax lawyers), be sure to simplify your writing. First, most judges will use their law clerks to get a handle on the briefs and the arguments. Most, if not all, law clerks have little to no experience with areas of law outside of basic civil and criminal practice (and maybe a little immigration in the Ninth Circuit). Use your brief (and maybe some of your argument) to educate the judges about how your case fits within the body of jurisprudence, and how the law should be applied with special focus on standards of review.
- One judge is very firmly in the Bryan Garner camp of writing – from deep issue statements to using footnotes for citations. In this judge’s estimation, in-text citations are the greatest obstacle to clarity and flow, and lawyers are using in-text citations and parentheticals as a substitute for analysis and hard work. Even if you are not likely to hop on the Garner train, the judge’s advice translates – don’t be lazy. Do the analysis in your own words. Long block quotations and citation parentheticals are the hallmark of lazy advocacy. We owe our clients and the courts more.
- And while we are on the topic, speak plain, clear, non-lawyer English. Only a lawyer and a cop would say, “There is a female in a vehicle.” Female is not a noun, and it’s a car, not a vehicle. “There is a woman in a car.” And, civil practitioners – “Further your affiant sayeth naught,” literally just means “I have nothing more to say.” Considering that it appears at the end of the affidavit, you can safely assume your judge knows the affiant has nothing more to say. Save yourself the word count and leave it out.
Trial Advice for Appellate Advocacy:
As you can imagine, district judges have strong feelings about what litigants could do better at the trial level to make the appeal flow smoothly. Here are some of their tips that you can share with your trial-level colleagues or apply to your own trial-court work.
- Ask for the court’s indulgence to make an appellate record – and, file the documents that you know will become important in the district court record. For criminal practitioners, this includes documents that will become relevant for collateral review. By anticipating these arguments and making the record, it may save you an evidentiary hearing years after the fact.
- Have an appellate folder to use during trial. In that folder, keep all handwritten notes made during trial, including notes on jury selection. Also include a brief 1-2 sentence summary of any oral objections where the court heard limited argument, any insights on jury instructions, and anything that happened “off the record.” If something happened “off the record,” you may consider asking the court to allow to you to briefly recount what happened after going back on the record, or filing something to memorialize it for appellate purposes.
- Make your opponent waive arguments on the record. For example, did your opponent affirmatively chose to not include a jury instruction? Make sure it is on the record that your opponent is not seeking the jury instruction and why. Same with curative instructions, make your opponent put on the record that they are declining the curative instruction. Later when they try to bring it up on appeal, you stand on firmer footing when stating that the argument has been forfeited.
As is likely apparent, this advice isn’t necessarily exclusive to appellate practitioners. These judges agreed to speak with me with the hopes of creating better advocates and seeing better advocacy. So, if you found any of their advice helpful, please pass it along freely.