From the Bench: Advice for Appellate Litigators

Some General Advice for Appellate Practitioners

Remember that judges are generalists, and because we all carry heavy caseloads, we don’t have a whole lot of time to learn your case. The most effective appellate practitioners will keep this practical reality in mind and place a premium on focus, organization, clarity, and brevity in their briefs and at oral argument.

On appeal, the audience has shifted, and your presentation of the case must account for the shift. You’ve lived with your case up close and for an extended period of time, preparing it for presentation in the trial court, which generally means that you’ve been thinking about it with a jury in mind. Even if your goal is dismissal on the pleadings or summary judgment, the endgame possibility that you might have to take your case to a jury informs everything you do. On appeal, you have to pivot away from a jury-centered view of the case and look at it from the vantage point of the appellate court. The change of perspective is key. Appellate judging entails more than just deciding the case at hand; we have to fit each case into the broader legal spectrum.

Spend some time thinking about your case from the appellate court’s perspective. Your main objective should be to articulate clearly for the judges what it is you’re asking the court to do as a doctrinal matter and why. For starters, this requires a careful framing of the legal issues and how they fit in the specific factual context of the case and in the broader spectrum of the law. If your case calls for statutory interpretation or some degree of doctrinal development, you’ll have to do the analytical heavy lifting to convince the court that your reading of the statute or the operative principles in the case law is the correct one. Either way—whether your case involves settled law or something new—you’ll have to explain why the result you’re asking for makes sense, not just in your case but in others down the road.

Your credibility before the court is important. Don’t overspin the facts or overreach on the law. You will lose credibility if we sense that you’ve played fast and loose with the factual record or pushed too hard on the law. On a related note, emotional arguments and hyperbole are ineffective on appeal. You should stick to a standard analytical method. I’m always surprised at how many lawyers make the obvious mistake of making “jury arguments” on appeal. A final related point: Acknowledge the factual and legal weaknesses in your case, both in your briefs and at oral argument. This is shopworn advice, but it bears repeating. It’s better that you forthrightly accept the difficult facts and adverse law and then do your best to explain why you should still win.

Make sure you acknowledge and deal with the applicable standard of review. It’s a truism that the standard of review is often decisive. If it’s bad for you, spend some time thinking about how you might neutralize this particular legal adversity.

In all appeals, and especially in appeals on behalf of criminal defendants, it’s important to pick your best arguments, concentrate your efforts on those, and leave the marginal arguments out. The shotgun approach never works, and it annoys the judges.

A final general point about appellate advocacy: Avoid attacking your opponent or the district court judge. Your job is to explain what the other side or the judge did wrong, not to question their motives. It’s bad form, and it detracts from your argument. (There are a few exceptions to this general rule—for example, where the substantive legal standard requires a showing of bad faith on the part of the opposing lawyer or bias on the part of the judge.)

Some General Advice about Briefing

The main goal in briefing a case for an appellate court is to clearly and concisely frame the issues on appeal, articulate the factual story and legal theory of the case, and then explain to the court why the result you’re asking for is not only right under the governing law but also well within the broader doctrine or a defensible extension of the doctrine. We have to be convinced that an opinion in your favor is the correct result in your case and will establish an acceptable and workable precedent for future cases. That’s how we’re going to approach your case; so before you write your brief, you’d better spend some time thinking about your case in those terms as well.

Organizing your argument is key. The rules of court necessarily establish the basic order and structure of your brief, but the way you frame the issues, describe the facts, and make the argument is obviously up to you. As a general rule, less is more in this context; pick your best issues and leave the weaker ones out. See Fifth Third Mortg. Co. v. Chi. Title Ins. Co., 692 F.3d 507, 509 (6th Cir. 2012) (“When a party comes to us with nine grounds for reversing the district court, that usually means there are none.”). The statement of the issues should be as specific and succinct as possible. Your statement of the facts should tell the story of the case chronologically, like the narrative in a newspaper or magazine article. Explain what happened as a historical matter (being absolutely faithful to the record), and also tell us the important procedural details of the case (suppression motions denied, motions in limine granted, key contested evidentiary rulings that are relevant to the issues on appeal, and so on). It’s helpful to keep in mind the journalist’s maxim of the “five Ws.” To understand any story, the reader has to have the relevant factual context, so make sure you give us the basic who, what, where, when, why, (and sometimes how). But don’t give us more than we need; leave out unnecessary factual or procedural detail.

As a general rule, in the argument section of your brief, you should lead with your strongest argument and then follow with whatever reasonable alternative arguments you might have. Sometimes this isn’t possible; some arguments naturally have to be addressed first as a logical or doctrinal matter, regardless of how strong they are (e.g., jurisdictional and procedural arguments come before the merits, and if there’s an issue about forfeiture or waiver that may bear on the standard of review, then you’ll have to address it before the merits). The point is to organize your argument to make it easier for the court to understand and decide the case. We won’t be persuaded by your arguments if your brief is poorly organized and we have to piece together the gist of the case ourselves.

A Few Practical Tips about Briefing

• Use party names instead of “appellant” and “appellee.”
• When possible, avoid the use of acronyms unless they are easily recognizable (e.g., FBI, SEC, RICO, DEA).
• Make sure you include the text of the relevant statute, regulation, or contract provision early on in your argument section and in a way that makes it readily accessible to the court—that is, not in a footnote.

Speaking of footnotes, they are generally best when used sparingly and for points that are truly “asides”—matters that are not substantively necessary to the argument but are important enough to include as factual or legal background or to avoid waiver.

Avoid unnecessary string citations. The exception is when you’re explaining a circuit split or a majority and minority rule in the case law. In that situation, a string citation including all the relevant cases is not only unavoidable but necessary.

Your headings and subheadings should say something substantive to cue the reader about what’s coming next. For example, a subheading that just says “Merits” doesn’t tell me much. On the other hand, some lawyers write really long headings and subheadings that go on forever; that’s a mistake in the other direction.

It should go without saying, but I’ll say it anyway: Try hard to keep your brief as brief as possible. This requires that you edit your work. And be sure to proofread before you upload your brief—ideally, have someone else proofread it, too. A few months ago, I came across a passage in a brief that stated the relevant legal principle followed by this: “[add citations].” Obviously, this was a note to self: “Come back later and add the citations!” But the attorney didn’t bother to proofread the brief. The “[add citations]” notation remained.

Some General Advice about Oral Argument

The briefs do most of the work on an appeal. The best oral argument will proceed as a professional conversation with the court. Your primary goals are to reinforce the main points of your argument, answer the judges’ questions, and satisfy any doubts they might have about whether the result you’re asking for is correct in your case and sound as a doctrinal matter.

Your opening remarks should focus on the primary points you want to cover in oral argument, not a recitation of the facts of the case. We’ve read your briefs. Again, lead with your strongest argument. You will be interrupted pretty quickly with questions.

Listen carefully to our questions and answer them as directly as you can, without evasion or redirection. Don’t turn a question around on a judge or try to put off answering; you are not in charge. Don’t dodge hypothetical questions. (You’d be surprised how many lawyers respond to a hypothetical question by saying “That’s not this case, Judge.” No kidding!) It’s best to refrain from complimenting a judge’s question; many judges find it off-putting.

Reserve time for rebuttal and then use it to actually rebut the main points raised by your opponent, not to restate your opening argument.

A Few Style Tips for Oral Argument

• Begin your argument formally with the traditional “May it please the court,” and a statement of your appearance. Some lawyers seem to think that this traditional opening only applies at the Supreme Court, but it’s appropriate for an intermediate court of appeals as well.
• Never read your argument. That’s deadly. Make eye contact with the judges. Use a conversational but professional style.
• Don’t mispronounce a judge’s name. (It’s “Judge Pose-ner,” not “Judge Pozner”). Never speak over or interrupt a judge; this happens with some regularity in my court, and it’s always a cringeworthy moment when the presiding judge has to tell a lawyer to cut that out.
• When you sense that you’ve made your point on a particular argument, move on to your next argument, and vice versa. Don’t continue to argue a point that the court is obviously not interested in or has torpedoed.
• Pay attention to the warning lights. When your time runs out, sum up in a very quick sentence and sit down. If you have time left but have made all the points you wanted to make, then sum up in a sentence or two and sit down. The judges will appreciate your respect for their time.