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February 13, 2024

Other Side of the Lectern: Trading Places

By: Aarin E. Kevorkian

This Panel discussion, moderated by the Hon. William Boyce, former justice of the 14th Court of Appeals of Texas, now a partner at Alexander Dubose & Jefferson, concerned the varying perspectives of appellate proceedings. Panelists consisted of: the Hon. Eric Magnuson, former chief justice of the Minnesota Supreme Court; the Hon. Thomas I. Vanaskie, former judge of the Third Circuit Court of Appeals, now a partner at Stevens & Lee; the Hon. Toby J. Heytens, judge of the Fourth Circuit Court of Appeals; and the Hon. Rachel Wainer Apter, associate justice of the Supreme Court of New Jersey.

The Panel analyzed important parts of appellate advocacy: big picture considerations, the written brief, the oral argument, and the ethics of taking on clients as a former judge. Each Panelist, having both practiced as an advocate and served as a judicial officer, offered unique insight into the specialties of appellate practice, having formed perspectives shaped by time spent on both sides of the lectern. The overarching theme? Advocacy as a dialogue.

Big Picture Considerations

First and foremost, a good appellate advocate will educate her audience. After two years on the bench, Judge Heytens didn’t feel he’d had any “radical shifts” in his opinion on the meaning of effective advocacy, but if anything, there may be some things he previously believed were true as a practitioner that have proven even more true as a judge. One such truism for Judge Heytens: “Before you can persuade the courts of anything, you need to educate them.” Justice Wainer Apter echoed Judge Heytens’s emphasis on the importance of practitioners as educators. “By the time you’re writing an appellate brief,” she explained, “you know every single detail of the case backwards and forwards. But, of course, whoever is opening the brief for the first time will know absolutely nothing about the case.”

Additionally, judges want to get the law right and advocates should offer guidance to the court. Justice Wainer Apter urged practitioners to consider that “the judge wants to get it right, but has a lot of cases on their docket.” When an attorney can “do the work upfront” of digging through the law and the record “and then simplify” the argument in a clear and coherent way, that “is incredibly important” from Justice Wainer Apter’s perspective. “[T]he point,” Justice Magnuson added, is that the “appellate advocate is a guide, someone who will help the court find the right path.”

Appellate practice is a specialty, requiring the use of skills different from those employed in the trial court. It is therefore “essential,” Judge Vanaskie explained, that “the appellate lawyer take charge” of the case once on appeal. “Standards of review, preservation of error”—these considerations don’t come into play for the trial advocate, Justice Magnuson suggested. A good appellate lawyer must “work way, way harder to know not only the big picture, but the details when you get pressed, too,” Justice Magnuson added. “But,” he reiterated, “judges are looking for your help.” With judges burdened with heavy and varied caseloads and constrained by time limitations, appellate attorneys must step into the role not merely of advocate, but of teacher as well.

Written Advocacy

Appellate advocates must keep various considerations in mind when drafting and compiling filings, from page aesthetics to substance and organization. As Judge Boyce observed, modern day practice means that readers largely consume briefs on electronic screens. In this context, writers must think about how to make the reader’s job easier, thinking through considerations such as what substance or other documents will be included, how the brief will be formatted, whether to hyperlink citations, and the amount of white space on the pages.

As to the substantive question of what information to include, Judge Heytens offered a metaphor: “Every single detail you give your reader has mass and weight.” Every fact, every name, every date, every location. The more mass and weight a lawyer loads onto her reader, the harder it is for the reader to carry it all together and discern what’s most important. Many background facts are often non-essential to the reader’s analysis, and if they don’t matter to the case, Judge Heytens recommends, they should be removed.

Justice Wainer Apter concurred, urging writers to be “ruthlessly editing” their work. (Justice Ginsburg, she shared, almost never used the word “that”). The writing process, she suggested, is tripartite: one must write, step away, and then return to rewrite. Effective written advocacy must distill and simplify complicated records and concepts into limited space to be read by judges with limited time—a feat not accomplished with just one round of writing. It is also critical, Justice Magnuson added, to have a cold reader review a draft. There can be a big difference between what a writer means to say, what she actually says, and what her reader perceives she said.

Oral Advocacy

“Lawyers and judges have distinctly different goals for oral argument,” Justice Magnuson said. An advocate needs to win the case; a judge needs to make sure the decision is correct not just for this case, but for future cases.

Preparing for oral argument as an advocate was thus the opposite of preparing for oral argument as a judge for Justice Wainer Apter. As an advocate, one must broadly have an outline of the case and a prepared introduction, lest the bench have little to no questions during the argument. Furthermore, as the case expert, an advocate must be able to answer questions on anything and everything a judge might be curious about. Thus, as a practitioner, Justice Wainer Apter was always trying to prepare the best and shortest substantive answer to questions that might arise at argument.

But a judge is trying to “drill down to the essence” of the case—the one issue that may be dispositive or the one main point of disagreement between the parties—and figuring out what questions to ask that will get to the heart of the matter. Sometimes, too, Justice Wainer Apter explained, judges may be unclear on smaller points and prepare clarifying questions to propose to advocates. And as Judge Vanaskie reminded, judges are not silos. Many, like him, rely heavily on their law clerks to prepare them for oral argument.

Where the perspectives converge is an interest in getting to the right legal outcome, whatever that may be. To that end, Justice Wainer Apter advised, it is important for an advocate to find common ground in a case (and at times, that may mean a concession in one area in order to timely move to another before the lectern light turns red). An advocate must also firmly state her position, but be careful not to overstate, lest she lose credibility with the judges. And while she must affirmatively present her argument, an advocate must also actively listen—remember, Justice Wainer Apter reminded, judges throw out helpful questions, too!

At bottom, oral argument is the advocate’s opportunity to helpfully answer a handful of hard spots in the case and “hammer” the opponent on his weak spots, according to Judge Heytens. Bear in mind that every single word should be helpful and use your time upfront (precious real estate!) wisely.

Ethical Considerations of Returning to Practice

Finally, Judge Vanaskie and Justice Magnuson spoke to the ethical considerations of returning to appellate practice after having served on the bench. Justice Magnuson warned, such an advocate must be careful. As Judge Vanaskie explained, former judges should ask themselves why a client is seeking to retain them. Is it for legal prowess? Insider’s knowledge of the process? Understanding of personalities on the court? These considerations are probably okay, suggested Judge Vanaskie. But if the client expects him to curry favor, such representation should likely be avoided. Ultimately, the advocate should be guided by his moral compass.

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In sum, the Panel offered insightful thoughts and practice pointers gleaned from years spent on both sides of the lectern: as an appellate advocate, an appellate judge, and—in some cases—a judge-returned-advocate. At each stage of appellate proceedings, advocacy is, most simply, a dialogue between the litigants and the court. When done effectively, an advocate can help guide judges to the correct legal outcome, both in the advocate’s case and for cases yet to come.

Aarin Kevorkian

Assistant Federal Public Defender

Aarin Kevorkian is an Assistant Federal Public Defender in Las Vegas, Nevada, where she primarily represents clients on direct appeal in the United States Court of Appeals for the Ninth Circuit. 

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