January 01, 2014

Sua Sponte A Judge Comments

An appellate judge lays out his views on selecting arguments.

Hon. Joseph A. Greenaway Jr.

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What captures the attention of a panel of appellate judges? This question has confounded generations of trial and appellate lawyers. Martin Siegel’s article goes a long way in trying to outline affirmative steps appellate lawyers should take to ensure that they position themselves for success before an appellate panel. The strategy of narrowing the number of arguments, focusing on the appropriate standard of review, and measuring the effect that the relief you seek will have on future cases are critical parts of every appellate lawyer’s matrix of considerations. But quelling the temptation to put in more and more should not be the primary consideration in the argument selection process.

There is another perspective worth noting when evaluating what arguments to focus on in your appeal: How does the selection of arguments affect the judges who are hearing my case?

Appellate judges hear literally hundreds of cases each year and write dozens of opinions. We hear cases that are inherently interesting. We also hear cases that are not. No shock there. Your challenge, then, is to pique our interest and persuade us at the same time. How you go about marshaling your arguments both in your brief and at oral argument has everything to do with your ultimate success.

Mr. Siegel speaks initially to brevity—fewer points in fewer pages. Yes, both are important and laudable goals. But as the song of my youth says, “Is that all there is?” Your challenge in selecting arguments is in answering this question: What is this appeal about? Whatever your pithy and succinct response is, that should be the focus of your appeal.

You will have two opportunities to respond to this question—your brief and, on occasion, oral argument. As you write your brief, consider how your argument selection process affects the reader. The fun part of being an appellate judge is learning—new life stories, new businesses, new areas of the law. The selection and order of arguments is where you can pique my interest.

We appellate judges want to be transfixed. Okay, how do you do that? Choose not just your best argument first, but your most interesting, particularly as an appellant. As you describe your best argument, is there something unique about it? Of course, a circuit split or a case of first impression is easy. We’re hooked in that event, but is there something more? Have any judges on the court you are before written on this issue? Is there a not precedential opinion on this subject that may render an inkling that you may have a sympathetic ear for your cause? Are you seeking to move the law, incrementally, in a particular direction? Is there something in the record that sets this case apart?

In the appellate court, while the record is static, facts do matter. Indeed, at times they make all the difference in the world.

On the other hand, the appellees’ challenge is to portray the case as mundane. The district court got it right. This case is a simple affirm. Appellate judges often seek the most direct way, when appropriate, to dispose of a case. Remember, generally speaking, an appellate panel is not looking to reverse or vacate. Genuine error and/or injustice must be discernible before a panel will take what is statistically shown to be drastic action.

Oral argument presents more challenges. The only moment in the oral argument you can control is when you start. Invariably, you will be interrupted, and quickly at that. Your mantra must be primacy.

You cannot control how the argument progresses, but you should have a strategy for returning to your main argument even if a line of questioning steers you off track. Do not make the mistake of spending time on a secondary issue in the hope of getting it out of the way. I cannot tell you how many times arguments are diverted by red herrings or inquisitors that take an attorney off his or her critical point, never to return.

Hon. Joseph A. Greenaway Jr.

The author is a circuit judge on the Third Circuit Court of Appeals and an associate editor of Ligitation.