Succeed At Appellate Advocacy By Stepping Into Court’s Shoes 

If you aspire to excellence in appellate advocacy, follow John W. Davis' first rule: "Change places, in your imagination of course, with the Court." "The Argument of an Appeal," 26 ABA J. 895 (December 1940), reprinted in 3 J. App. Prac. & Process 745, 749 (Fall 2001).

In a sense, all other rules flow from that one because the whole purpose of the appeal is to win the favor of the court to your client's cause.

The better you know the tribunal, understand its role in the legal process, and take into account its needs, expectations and wishes, the more effective you will be in advancing your client's cause.

Always ask yourself what you would want to see and hear if you were deciding the case.  Let us illustrate the point.

At the outset, appellate judges are indifferent to how the case comes out. Their sole bias is for the legally correct result, and they will be looking for the quickest, easiest way of getting there.

Judge Spalding of the Supreme Judicial Court used to tell his law clerks: "Never go to the mat with a difficult issue if there's a way to avoid it."

That advice reflects the view of nearly all appellate judges. To look for the simplest, most convenient way to decide the case is a virtue if that course reaches a legally correct result. The lawyer who best shows the way to the quickest, easiest, correct legal result is the tribunal's friend.

The operative presumption of appellate judges is that the trial court reached the correct result. An appellant must overcome that presumption and convince the appellate court both that the trial judge committed error in a ruling and that the erroneous ruling was probably responsible for the judgment below.

Before even reaching the argument that might overcome that presumption, however, counsel for an appellant must make it through an obstacle course of procedural hurdles - hurdles relating to preserving appellate rights, hurdles relating to appellate timetables, and hurdles relating to the conventions of appellate brief writing and oral argument.

All those will be discussed later in this series. For present purposes, we need only note that an appellant's failure to clear any one of those hurdles may give the appellate court the quickest, easiest, correct way to decide the case. 

Second, burdensome caseloads permeate every aspect of the work of appellate judges, and that fact of life influences your role as an advocate in myriad ways.

In the Appeals Court, for example, 2,355 new cases were entered in 2009. During a month's sitting, each panel of three judges hears oral argument in six cases on one day and another six cases on a second day. The time allotted for oral argument is generally limited to 15 minutes or less per side.

The panel is also responsible for the summary disposition of another dozen cases that month, a process we will discuss another time.

 Ideally, each judge will arrive on the day of oral argument in your case having read and thoroughly understood your brief. But conditions aren't always ideal. There are five other cases on the day's list, each with two or more briefs. If each party's initial brief is 50 pages - the maximum the rules allow without special permission - each judge will have had to read 600 pages for that day's cases, or 1,200 pages for the month's argued cases, not to mention a possible 240 pages of reply briefs, and maybe some amicus briefs.

In addition, the judges almost certainly will have read the decisions of the trial court judges whose rulings have been appealed and will probably have tried to read some key documents, or some critical testimony in the appendix.

More likely, if not ideally, every judge on the panel may not have done all that in all 12 cases in every month. Among other duties, they are trying to get out opinions within 130 days of argument in cases already under advisement.

Say a judge is left with 20 minutes the night before argument to prepare for your case.  What will the judge look at? An experienced guess: first, the decision of the trial court judge; second, the summaries of argument in your brief and your opponent's brief; third, at the end of the appellant's brief, what the appellant is looking for by way of relief.

Make a mental note to yourself: The "Summary of Argument" is not just a make-work chore; take the time and care to make it a compelling stand-alone presentation of your argument, albeit short. And a strong, clear, argumentative table of contents doesn't hurt.

 It doesn't take much imagination to see that today's appellate judges are swamped with cases. The case that consumed you and your client in the trial court, perhaps for years, arrives at the appellate level as merely one of a multitude of similar cases, likewise consuming other counsel and clients, all crying out for attention.

In such circumstances, you cannot realistically expect appellate judges to leisurely peruse your brief, like a novel. And if you cause any confusion or misunderstanding in their minds, they do not have a lot of time to decipher your meaning. Instead, they will turn to the other side's brief to find out what's going on, and you will have lost your chance to be the lawyer who is the reliable guide to the quickest, easiest, correct way to decide the case.

In today's busy appellate world, to be effective in persuading the court to favor your client's cause, you must be concise, easy to understand and crystal clear.