Appellate Advocacy: A Young Attorney's Perspective

Constructing the Brief

Value Substance over Strategy

As young attorneys, we often think, because we are essentially told, that a brief should be a masterpiece of rhetoric. Among other sage advice, we seek to employ that elusive craft of persuading while appearing neutral. A strategic and persuasive statement of facts, in particular, is considered essential to effective brief writing. The appellate advocate must be at once “a rhetorician, a semanticist, and a stylist.” Appellate Practice Manual 188 (ABA Section of Litigation 1992).

Such qualities will unquestionably work to the advantage of an appellate practitioner who has them, but if they were a necessity, there would hardly be an attorney, least of all an inexperienced one, who could effectively pursue an appeal. The truth is you don’t need to be that clever. At least, I’m not. And a bungled effort at artful persuasion is far less effective than a straightforward, even-keeled composition, even if it is a little dry. In my experience, guessing at this strategy is a risk with little reward. Few practitioners can undetectably manipulate the mind of the reader. Most attempts are transparent to judges and clerks, who are versed in this strategy. Moreover, I find that it detracts from the essential task of brief writing. I want to persuade the court that I am right, of course, but this can be achieved without subliminal messaging.

Instead, I like to take a page from my government experience. When writing briefs for the government, I was taught to state the facts as neutrally as possible because the court will likely rely on my statement. The approach was simple and effective. Perhaps it had something to do with the government’s advantage as appellee in most criminal appeals or with the measure of credibility that came with the office, but this approach translates well to both private civil practice and criminal defense. It is also particularly suited to less experienced attorneys.

Attempting to give a fair presentation of events takes the guesswork and distraction out of brief writing. You should still tell the story from your client’s perspective—that is, the way that shows why the law and the record support your arguments. Focus, however, on what a successful brief must contain: a plain, usually chronological statement of facts; accurate and extensive citation to and reproduction of the record; thorough research and citation of legal authority; and a clear analysis that draws substantially from the facts and evidence.

Plain and thorough facts also present the young attorney as a serious and credible advocate. This, more than anything else in your control, will influence how the court approaches your arguments. The good and bad news for young attorneys is that your reputation does not precede you. A clean, well-crafted statement of facts encourages the court to rely on you as it does the government or any other practitioner who has established credibility with the court.

There is, however, no guarantee the statement of facts will shape the court’s first impression of the case. How and in what order the court reads a brief is a matter of chance and personal preference. If you are the appellant, the court may still begin its review of the case with the appellee’s brief or the district court’s rulings. Even if the court reads your brief first, it is just as likely to start with the first argument heading, the statement of issues, or the summary of argument. Moreover, the court is likely wondering what opposing counsel has to say about the issues and keeping an open mind. The statement of facts should be well presented, as should all sections of a brief, but its most important function is informational. See id. at 199.

Even if your statement of facts, read alone, has managed to lead the reader stealthily to your corner, the argument section inevitably forces your hand. The argument properly contains your analysis of the issues and what you believe the court should do. If, after reading your argument, the court believes in retrospect that your statement of facts gave an overly skewed presentation of events, you may find your credibility in question and your arguments under scrutiny.

On the other hand, a strong argument section following a clean statement of facts is always persuasive. In addition to thorough research and legal analysis, an effective argument will draw heavily on the facts and the record. It is therefore critical that the court find your facts reliable.

Finally, even a strong case will not necessarily lend itself to a show-stopping brief. Judges understand this. When reviewing the dry facts of your mortgage priority issue, the court is not expecting the final installment of Lord of the Rings. Your main task is to provide the court with the substance it needs to rule in your favor. A clear, thorough, and fairly presented case will make it easy for the court to do so.

Appeal to Reason over Emotion
Led by the observation that at times judges, like all of us, are influenced by emotion, the temptation arises to target those emotions in the brief. I tend to avoid this approach. Particularly as a young attorney whose strengths and weaknesses in the art of appellate advocacy are still being sorted out, I appeal as strictly as possible to reason.

The primary concern with appealing to emotion is not that it precludes a reasoned analysis but that emotional elements can make it appear as if you are trying to compensate for weaknesses in your argument or in the record. It will not ultimately undermine sound reasoning, but it will raise skepticism. To the extent your logic is debatable, you have made your case appear weaker, and your credibility is now threatened.

In my experience, appellate judges rarely make emotional decisions. I have seen judges genuinely sympathize with victims of obvious child abuse or expend significant time and emotion on cases that would separate families, but rule against their sympathies because the litigant sued the wrong party, clearly broke the law, or otherwise failed to meet the standard for reversal.

In a criminal appeal in which a U.S. court of appeals reversed my client’s conviction, I was told in no uncertain terms by a judge on the panel that he hesitated to call my client innocent. Aware that some evidence suggested my client might have known of some illegal purpose, but apparently acknowledging that the evidence was insufficient to support his conviction under the law of the circuit, that judge still ruled in my favor.

Even with politically charged issues, it is generally ill advised to target a judge’s emotion through the brief. A judge whose philosophies align with your arguments is predisposed to consider them favorably, and a judge who is hostile to them probably will be won over only by reasoning because the judge’s emotions already incline him or her against you.

When selecting a theme for my case, therefore, I avoid having it center around sympathy or admiration for my client or cause. The court will determine from the facts in what light it should fairly cast the parties. To suggest something other than what the facts plainly show only avoids the hard questions you need to address to be able to prevail. Thus, I try to focus my brief on the known quantities rather than the perceived passions, prejudices, politics, or philosophies of the judges I am trying to convince. Having some insight into how particular judges think can be an advantage, but it does not necessarily strengthen the brief. Most judges’ analysis of your case will ultimately transcend these considerations.

Conducting the Argument
Oral argument is a forum in which lack of experience can really show. You may be uncomfortable with the process. You may not feel as confident in your abilities as you do in legal writing. You are not as skilled as experienced counsel in anticipating questions or weaknesses in your case. Your brain is essentially filled to capacity. What experienced practitioners do naturally may require constant thinking on your part, particularly regarding the mechanics of the argument and customs of the court. And no matter how many arguments you have observed, observation is no substitute for actually participating in one.

In my first argument before a federal court of appeals, I did not know something as simple as when to advance to the podium—an omission in preparation that caused me great stress for probably a full three or four minutes prior to argument. I knew the record cold. I had outlined my argument countless times. I had mooted the issues to exhaustion. I had watched numerous arguments that had taken place before that very court, and not once did it occur to me to note the precise time and manner in which the first person speaking for the day should rise to begin his or her argument.

There are all sorts of little obstacles to be considered even before you open your mouth, such as whether and when to make use of the attorney lounge, when to set up shop at counsel table, what notes and parts of the record to take with you, and, yes, which side to sit on. Ultimately, I resolved my podium predicament by not-so-gracefully turning to ask a supervising partner, who sat in the first row of a packed courthouse. Had the partner not been there, at that point I probably would have asked anyone in the first row willing to offer a suggestion.

Fortunately, young attorneys can compensate for most of these disadvantages with thorough preparation. With that in mind, I offer the following advice on arguing your case:

Know the Record
Judges have different methods of reviewing a case. Some will have extensive knowledge of the briefs and the record, and some prefer to hear argument before delving further into the case. You should and will be expected to know the record better than the panel, and to answer questions about its content. This includes testimony, evidence, dates, and even the location of specific items. Knowing the record allows you to assist the judges where they need it most and to show them where to find support for your arguments. Complete knowledge of the record gives you confidence that no surprise of fact or evidence will arise, and that if it does, you have a strong point of reference for addressing the issue.

Know the Law
You will also be expected to have complete knowledge of the cases cited by you, co-counsel, and opposing counsel. Have fresh in your mind the facts of these cases and the grounds for distinguishing negative authority. Do not assume that the court will not ask about specific cases. I have been asked about specific cases and, on rebuttal, had to correct opposing counsel’s characterization of the facts in applicable cases.

Also, in an appellate argument, you may be asked about the standard of review or the jurisdictional basis for your appeal, even if your opponent has not contested jurisdiction. The court can question its subject matter jurisdiction at any time, and it is not at all unusual for the court to inquire how and why the case has come before it.

Finally, something that may not be on your mind right before argument but that should always be done is to Shepardize key cases as close to argument as possible, preferably within 24 hours of it. You do not want to spend half your argument relying on a case that was overturned, distinguished, or called into question the day before, without having an adequate response. You also do not want to miss the opportunity to point out recent negative authority for a case on which opposing counsel relies.

Heed the Panel
It is not enough simply to survive an oral argument or to get through your points. The court sets argument for a reason, and you want to answer any questions weighing on the judges before leaving the courtroom. To that end, you should welcome difficult questions. Often, you may want to raise the difficult questions yourself to learn the judges’ impressions of the issues and to address any doubts they have regarding your position. Otherwise, the panel will sit behind closed doors, considering those difficult questions anyway, and you will have missed the opportunity to give your point of view. Answer questions as directly as possible and focus carefully on the question you were actually asked, not the one you want to answer. Learn to recognize friendly questions, if you are so fortunate, and use these as a starting point to build support for your argument. A good way to bridge the gap created by inexperience is to ask for advice from more experienced attorneys and moot the argument with them. This will help you to be more attuned to the panel and to anticipate questions.

Maintain Composure
It is essential at any level of experience to conduct your argument in a professional manner and not get roped into a defensive stance with the panel or opposing counsel. However passionate you may feel about your argument, however low you feel opposing counsel has stooped in presenting the case, or however wrong you feel the court may be in the direction it is taking the argument, it never pays to respond with anything other than a clear, concise presentation of the facts and the law. This is particularly important for less experienced attorneys, because maintaining a professional demeanor shows maturity and objectivity, as well as confidence in your case. Such an approach encourages the court to focus on the substance of your arguments and, as is true of a professional brief, will present the most effective case.

Keywords: litigation, appellate practice, oral argument, young lawyer, brief writing

Lara O'Donnell Grillo is an associate with Jorden Burt LLP in Miami, Florida.

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