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Be the Tenth Justice: Tell Appellate Courts What They Should Hold

Zachariah Sibley

Be the Tenth Justice: Tell Appellate Courts What They Should Hold
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“So what are you asking us to hold?” This question is not uncommon from an appellate bench. It rifles right to the point. And it should be a softball, right? After all, you have been stewing in the law that animates your client’s legal issues for the past several months, if not years. Of course you know how you want the panel to announce your victory to the world. Or at least, you should.

Too often, however, advocates meet this question with a blank stare or muted panic, followed by an off-the-cuff stumble through a run-on sentence that would read terribly on the written page. Perhaps some advocates feel that their job is to only secure a particular mandate—a reversal or an affirmance. How the opinion is actually written, well that’s what our tax dollars are paying you for, judge.

But that attitude is wrong. A considered statement of your desired holding—both oral and written—can maximize persuasiveness, focus your arguments, and even influence the panel’s private deliberations.

Stand and Deliver

Delivering a thoughtful, concise statement of the holding you want for each issue on appeal benefits your argument on at least three levels. For one, being unable to answer a simple-sounding question that cuts to the heart of why you are all there in the first place may come off as unpreparedness, kill your momentum, or hinder your overall persuasiveness with the panel.

Secondly, you appear before the panel not just as an advocate; you also serve as an officer of the court. If you are arguing an appeal, chances are you will be litigating in that same area of law in the future. You should want to participate in how the opinion is drafted because, in a world where lawyers can make words do many different things, word choice and sentence structure matter. A well-fashioned holding can be the difference between a decision limited to its facts and a precedent that truly develops the law and betters the position of persons just like your client. Indeed, you should craft the quote that you want to cite in future briefs on the issue.

Third, and most valuably, preparing your answer to “what do you want us to hold?” will crystallize in your own mind what you want the appellate panel to do. And once you know precisely where you want the panel to end up, you can better reevaluate your arguments and address any missing or unclear directions in them. So even if the question goes unasked, preparing to answer it still benefits your argument.

A Brief Journey Beyond the Bench

While preparing a verbal answer to this question is great and all, the question frankly should have been answered long ago in your brief. My advice: Use the concluding paragraph under each issue (or even sub-issue) heading to explicitly spell out the holding you want. “Therefore, the Court should hold that . . . .” Whatever poetry may be sacrificed by such explicitness is made up for in helpfulness to the panel.

The payoffs for writing out your desired holding mirror those listed above, with one addition. You’re up at the podium. You blink. Your eyes open to find that argument time has expired and the panel is rising to retire to its secret conference room. Yet so much went unsaid, entire lines of argument never got broached, and your best quips never graced the panel’s ears. Nevertheless, you do not get to go back to the conference room to continue pleading your case. But your brief does. And if in that inner sanctum, a debate arises over the question of what the court should hold on the issue, then chances are that someone on the panel might just champion that thoughtful holding statement made so elegantly explicit in your brief.

Brief the holding you want. Prepare to deliver and defend it. Do so, and you may just become the “tenth justice” in that conference room.

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