Robert Shapiro’s excellent essay should be required reading for all new litigation associates. It is thoughtful and detailed, yet at the same time, both concise and precise. It focuses on the exercise of judgment as one proceeds through and makes decisions about trial-level litigation. Something of the same thought process is also invaluable when the litigator takes the next step: pursuing or defending an appeal.
Robert Shapiro is certainly correct that for the trial litigant, the initial focus is historical, the events have already happened—you may not know the entire history and your client probably hasn’t told you everything, but you are dealing with history. This is even more true on appeal. The history is now fixed. It consists of a known record, and you will need to know it like you know the medical history of your own parents, probably better. In a matter of months, you will be standing in front of three judges who, with the help of one or more over-performing graduates of one of the nation’s finest law schools, will have spent weeks poring over the case. There will be no excuse for not being able to respond on the spot to hard questions about the record. And you cannot fake it; you either know it cold or you don’t.
But I’m a bit ahead of myself. After the notice of appeal has been filed, the next step is the brief. This is where Shapiro Rule 1 (“The ‘vision thing’”) comes very much into play. Too many briefs are a hodgepodge of ideas, events, and cherry-picked cases that cause the reader’s eyes to glaze over two pages in. A truly excellent brief—and we treasure them when we get them—tells you in the first few lines of text that the author has thought completely through the issues and cases that drive the appeal and has a vision of where the appeal is and should be going.
The appellate version of Shapiro Rule 3 (“Manage the future by looking backward”) is to fully understand the other side’s position. If your client prevailed below, you will have the other side’s opening brief in hand. But the other side may not have done its position justice, and you can be sure that, at argument, a well-prepared appellate judge will ask you to respond to its best points, whether they’ve been made effectively in the briefing or not. So, unless you have Paul Clement or Seth Waxman on the other side, you will need to construct and be prepared to respond to the other side’s best arguments before you even write your own brief.
There will undoubtedly be time between the filing of the last brief and the actual argument, so you will want to periodically freshen your research. If doing so reveals a case that either helps you or might hurt you, most appellate courts allow the submission of letter briefs. See Fed. R. App. P. 28(j). Do not wait until the week before argument to tell us about a case that was decided before cell phones existed. If you receive a pre-argument order asking you to be prepared to address a particular case at argument and it turns out that it is one that might help your client’s case, this is not a time to pat yourself on the back; it means those over-performing clerks have found a case you didn’t and you’ve just received a failing 28(j) grade. While it is unlikely to affect the outcome, you are off on a bad foot.
The equivalent on appeal of Shapiro Rule 4 (“Patience isn’t a virtue; it’s a necessity”) is listening—a skill far too few advocates bring to the appellate courtroom, unfortunately. Walk into any court of appeals in the land and listen to the arguments. At least one of the lawyers will react to a question from the bench by either not answering the question or interrupting the judge mid-question, giving an answer the advocate wants to give, not what the judge is actually looking for. Listening is a skill your parents tried to pound into you; only now, failing to use it can result in more than a few stern words. You must listen to and focus on the question as carefully as if a focused and responsive answer would win you the Powerball lottery. Once you have listened, answer the question directly, with a “yes” or a “no” if possible. Then, and only then, explain how your response fits into the rest of your argument. Truly excellent advocates know how to both answer a question and turn a responsive answer to their side. That opportunity could come even when a fairly straightforward question is asked. In a recent environmental appeal, we asked the lawyers if it was necessary to stay the lower court order allowing the project alleged to endanger a protected species to proceed. The lawyer for the environmental group simply said no. Counsel for the company told us that a stay would be unnecessary as his client had voluntarily suspended work during the species’ mating season. That even made me smile.
You are now closing in on the day of argument. But if this is the first time you’ve actually walked through those particular courthouse doors, you’ve probably missed a step. Let’s say your case is calendared for a Wednesday, but the same panel is sitting the day before. Why not indulge yourself (and help your client) by watching the panel in operation and see how the judges interact with counsel?
OK, you are now at the day of argument. In most appellate courts, you will have known the identity of the panel in advance. You’ve researched their prior opinions and you know that this will be a hot (well-prepared) panel. You’ve zeroed in on the toughest question you will face and you know there is no perfect answer. This is where knowing the essence of appellate work is critical. If trial work can be compared to offense in football, where you try to score on every drive, appeals are more like long-distance running, where all you have to do is finish next to last. There may be no perfect answer to that hard question, but if you can convince the panel that your position is closer to the essence of the case law, you have done your job.
If you have the appellant’s side (hint: you lost below), always save time for rebuttal; failing to do so gives the other side the appellate equivalent of a home-run derby. Actually saving the time can be a bit of a trick itself. You can tell the presiding judge you want to save three minutes and the judge may actually remind you when you get there, but best to keep your eye on the clock and actually save it. Better yet, ask the presiding judge if the courtroom clerk can put your time limit on the clock, less your rebuttal time.
Deciding whether to use rebuttal time is something like the question good trial lawyers ask themselves when handed an adverse trial witness: Has the witness really damaged my case, and can I repair the damage, or am I better off taking a pass? If your appellate opponent has said something that, left without response, could affect the picture of the case you’ve tried to present to the panel, then ask yourself if you can, in one or two sentences, set the panel straight. If so, then by all means, do so. But rebuttal time is rare air and you must use it with Strunk & White’s admonition to “[o]mit needless words” in mind. No long windups; just sharp jabs, focused precisely on the point you wish to make. If not, go to the podium and ask if any of the judges have any questions. If the presiding judge says no, you’ve probably made the right call.
Shapiro Rule 12 (“If you are fighting monsters, you risk becoming one”) resonates on appeal. Judges notice things, like lawyers who treat each other with respect. When an appellate advocate refers to the opponent as “my friend,” judges smile inwardly. The appellate courtroom is no place for rancor or hyperbole. Revenge, as they say, is a dish that should be eaten cold. Good lawyers “get back” with the law and the facts, not the number of ill-tempered adverbs or adjectives thrown at the other side.
Finally, a comment on Shapiro Rule 9 (“He’s your idiot”): We don’t care. Spending time trying to convince us that the trial judge was an idiot is a waste of time. The best judges make mistakes and the worst sometimes get it right. Convince us your trial judge erred, and if that’s the case, it doesn’t matter if the judge is an idiot or not.