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Litigation Journal

Sua Sponte

Hon. Kathleen McDonald O'Malley

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It is true that appellees have significant advantages on appeal.  Defending the decisions of a thoughtful jurist or, better yet, a properly charged jury is always easier than having to attack those judgments. 

By following the advice Ms. Ambrose gives, appellees will be well on their way to “making the best” of their appellee status.  Appellees must, however, take care to protect the benefits that accompany their status as trial victors. 

To remain well positioned on appeal, they must establish themselves as trustworthy authorities on the facts, the law, and the record.

First, appellees must resist the temptation to overstate their case.  No complex civil trial proceeds without missteps.  Indeed, despite my 16 years as a district judge—and, thus, having had many chances to get it right—I am confident I never presided over an error-free trial. 

Do not try to convince appellate judges that yours is the rare case in which the trial judge did everything perfectly or all of the court’s rulings are above criticism.  As Ms. Ambrose suggests, concede error when you must and then explain why those errors do not impact the integrity of the judgment in your favor. 

Similarly, do not characterize the appellant’s arguments as “frivolous” or “mere sophistry” when they are not, or try to obfuscate matters by attacking unrelated conduct of opposing trial counsel.  Rather, fairly identify the real, relevant issues and explain why your position on the merits of those issues is correct.  Such candor will enhance the credibility of everything else you argue.

Second, be true to the record.  Tell us what actually occurred below, not what you wish had occurred.  Do not cite to a portion of the transcript to support your description of the facts unless the testimony to which you cite—read in its entirety and in context—really does provide that support. 

Don’t tell us that the trial court ruled on a point unless it really did so; don’t assert that an argument was made below unless it was. 

This advice may seem basic, but you’d be shocked by the distortions we see.  While a few such mischaracterizations might be missed, the vast majority are discovered, to the substantial detriment of the party making them. 

Resisting the urge to rewrite the record, or to hyperbolize the truth, bestows a priceless advantage on a party:  the court’s trust in your descriptions of the case at hand.

Next, take care with your treatment of the law.  Do not use statements from case law out of context or rely heavily on dicta to support your position.  Worse even, don’t mischaracterize the propositions for which a case fairly can be read.

Remember:  Every case cited for every proposition will be read.  So, the use of ellipses to remove problematic language will not help you; it will damn you.  One manipulative or misleading use of legal authority will make all else you say suspect. 

And, the failure to cite or address meaningfully the most obviously relevant precedent will cause the reader to turn elsewhere to be educated on the law.  Especially when only fine distinctions separate those cases that support you from those that do not, risking your status as a reliable authority on the law could mean the difference between prevailing on appeal and facing reversal of your hard-fought victory.

Finally, answer the questions posed by the panel.  The argument is not a time for you to hone your skills as an orator or to focus the discussion on things only you feel are important.  In other words, it is not a presidential debate.  It is, instead, a time to allay the panel’s concerns or to explain respectfully why the court’s understanding of the record or the law is incorrect.

Watching counsel dodge and weave in an effort to avoid answering a straightforward question is, quite frankly, painful.  Evading the panel’s questions is always seen as a sign of weakness in the integrity of your position. 

When counsel anticipate questions and seize the opportunity to answer them candidly and without misdirection, they earn or maintain the panel’s trust.  When they do not, they falter and often lose.

At bottom, an appellee’s own choices can tarnish the silver lining gained from having prevailed below.  Serious misstatements or efforts at misdirection encourage the court to question everything you say, including the claim that you rightly succeeded below and deserve to prevail on appeal. 

Even well-crafted writing and eloquent oration cannot recapture credibility once lost.  Remain a respected, reliable, candid authority on all aspects of your case and you truly will make the best of being an appellee.


Hon. Kathleen McDonald O'Malley

U.S. Court of Appeals for the Federal Circuit, Washington, D.C.