Legal writing is an understated art contributing to advocacy. We asked five different attorneys to provide recommended strategies for advocating through legal writing in various areas and stages of the law.
This is the fifth part of a five-part series.
Knowing how to approach appellate writing enables you to make the best of a bad situation. Every appellate case is an opportunity to examine the legal system and challenge it to be better. Every appeal is an opportunity to challenge yourself to be better and give your client another chance at the justice they deserve.
Your clients’ goals shape your work. Some appeals seek to overturn the original decision on its merits. Others pursue procedural changes to the way the legal system operates. Some function to postpone enforcement of the unfavorable ruling (e.g., deportation, incarceration). Many clients hire an attorney knowing their odds of success on appeal are infinitesimal. Don’t underestimate the positive impacts the appeal process has on your client while it is pending.
If you believe the underlying decision is likely correct and will be upheld, keeping your mind open as you craft your argument is essential. Begin with the assumption the legal system is inherently imperfect and work from there. If you can identify one way where the system could have worked more fairly and argue it effectively, you may be able to improve matters not just for your current client but for everyone who touches the system moving forward.
Becoming familiar with the entirety of the proceedings to date is imperative. Review the administrative record or trial transcript in detail, exploring every step of procedural history. Get a sense of how the entire case fits together. Consider the timing of the case events; any changes of jurisdiction, representative, or adjudicator; any current events or political occurrences that may have impacted the parties; anything that disrupts the case flow.
Look for common misapplications of the law—like places where elements of the case become muddied together rather than clearly analyzed. Review case law or court resources to see how the court to which you are appealing thinks the elements of a case should be analyzed. Did the adjudicator below adhere to that approach? Is there something they forgot or didn’t give sufficient emphasis? Judges are human, too, and make mistakes like anyone else.
Search for anything that doesn’t feel right or feels unfair. Assume the principles of fairness and decency should dictate the way a case is determined and recognize that any deviation from those may represent a potential challenge on appeal. If you find something that feels wrong, work backward by researching legal standards for that element of the case and search for authority to back up your instinct. Anchor yourself in the core belief that legal systems should be fair. Anything undermining that fairness can, and should, be cause for reversal.
Writing an appeal is an unparalleled opportunity to become a better lawyer. Stepping back from the trial context allows you to think like an adjudicator, improving your trial skills and thinking about the law. Additionally, reviewing the work of lawyers in the record exposes you to new strategies, best practices, or even pitfalls to avoid.
