I have handled many types of litigation matters over my career. Win or lose, the appellate issues were the job of the appellate team. Imagine my amazement when after about 15 years of practice, I found myself in the halls of a state court of appeals and the Fifth Circuit on two unrelated cases in a single year! The first time came with an interesting First Amendment issue; the second time was only months later when an appeal was taken on a dismissal we achieved in federal court on a False Claims Act case. The lessons learned were many, and it always helps when you have a good result to go along with those lessons! Here are some tips I picked up.
Stay Abreast of Opinions Coming Down from the Supreme Court
When the First Amendment case went up on appeal, the issues turned on some fairly new guidance from the U.S. Supreme Court. Had I not just read the Court’s opinion a few months prior, I probably would have felt like I was not equipped to take on the case in the first place. When the client reached out to inquire about retaining the firm, I was able to speak intelligibly about the dispute even though it was not my primary area of practice. I was comfortable with the subject matter, and we prevailed at the trial level.
Leverage Any Resources You Have Such as Others Inside or Outside Your Firm
Once the appeal was taken, I immediately suggested that the client retain one of our appellate specialists. The client was not comfortable with a new lawyer coming on board, so I was tasked with getting ready to handle the appeal. I figured the appeal would just be decided on the papers, so you can imagine my surprise when an oral argument was granted! I immediately called one of my appellate specialists for tips on preparing for the oral argument.
Research the Justices Who Will Sit on Your Panel
You should always do some basic research on which justices will sit on your panel. With information being so readily available, there is no excuse for not doing basic research.
Study Prior Opinions Rendered by Your Panel of Justices
I called on one of my appellate specialists to find out what insight he could provide about my assigned justices in front of whom he had argued many times over the years.
Know Your Case Inside and Out
Work through what you believe might be arguments the other side will present and be ready to provide a good response. Be prepared to acknowledge any weaknesses in your case while also presenting the court with a path to get to your desired result—despite those weaknesses.
Know the Record
One of the best pieces of advice I received was to know the record in your sleep! This advice was really a lifesaver when I found myself in front of the Fifth Circuit. I thought my job was done once we prevailed at the trial court level. As we celebrated our victory on a case seeking over a billion dollars in damages, the ruling was appealed to the Fifth Circuit. I talked to the general counsel about my recommendation for one of the firm’s appellate specialists who should handle the appeal. The general counsel listened to my recommendation patiently. As soon as I finished, the general counsel said I knew this case better than anyone and should handle the appeal. After I composed myself, I assured myself that I could do this!
My first stop again was to the same appellate specialist to seek advice and strategy. He again told me to know the record in my sleep. As I identified key pieces of the record, I tagged those with topic titles and pages as a cheat sheet for quick reference. It worked like a charm when I was in the line of fire as the justices start throwing question after question at me.
Study Issues and Don’t Prepare a “Speech”
Don’t prepare a long speech because you won’t be able to deliver it anyway! You are lucky if you get a few sentences in before the court begins to pepper you with questions. My cheat sheet of issues with pinpoint citations to the record really helped during the fire storm.
In summary, preparation is the name of the game and use the resources around you. In retrospect, both experiences were awesome as they took me out of my comfort zone, and I can also proudly say I’m undefeated at the appellate level!