Effective appellate advocacy part I


As I mentioned in my last posting, Friday I attended a half-day conference on effective appellate advocacy in D.C., with about 100 other appellate types – a mix of agency folks (e.g. a large contingent from FERC's solicitor's office), to the young ex-clerks going into the appellate groups in private firms (more and more, especially in DC, appellate practice is deemed a speciality, like any other, that you concentrate on from the beginning).

The first session was moderated by an NYU professor, with a panel of judges consisting of Judge Ambro (CTA3), Judge Kavanaugh (CTADC) and Judge Dyk (FedCTA).  Two practitioners, Robert Long of Covington, and a friend from AAAL, Luther Munford of Phelps Dunbar) also participated.

I'm not going to repeat the usual, because we've gone through that before.  Here are a few of my new takeaways or further confirmations, beyond the tried and true.

One general theme was context, in various well, contexts.  The first was research.  This is one of my pet peeves, too, so I will elaborate.  The judges said that research was getting worse and worse, because no one puts anything into context any more.  This is largely due to the way we do research now, electronically.  Nowadays, you plug in a question and get an answer.  There's no indication of how that issue and answer fit into the larger legal framework.  (And it's getting worse; if you use something Westlaw Next, you aren't even the masters of your search any more – you are a captive of Hal, the legal logarithm). 

Use and cite a treatise, they said, to get an overview (most law reviews have become too theoretical to be useful – indeed, they noted, the better ones for their purposes can be the less well known.)  It is very clear that on the federal appellate bench, the judges are acutely sensitive to the context of their decisions, too – how does this decision fit into the larger pantheon.  They reminded us that they are generalists, so we need to explain this to them.

Another context point is how you draft the brief.  I am always saying frame, frame, frame, and they confirmed this.  They like intros.  They were disturbingly candid about the importance of the summary of the argument and the first two pages of the reply, because this may be all the judge (re-)reads.  You need a theme and sound bites that they can keep in their heads.  So, yes, on the one hand, you need to put things in context from the larger pantheon of the law, and teach them the background law they need in this area, but you need to construct your briefs in a way that does this while focusing them on your theme, from beginning to end – even the conclusion, they said; do not just say "for the reasons given above, please [insert relief requested]" – this is another place to put your one sentence sound bite.

In this same vein, everything needs to be easy to follow – so, for example, make sure you have a good table of context for your appendix.   

Another point that I've mentioned before, but will repeat because the judges said it too, is not to yell – no boldface, underlines or shrill and accusatory tones. 

In framing issues, they said look at how the Solicitor General does it in briefs to the Supreme Court, they are very nicely done.  In winnowing the issues on appeal, Luther said identify those issues that if the panel doesn't agree with you on issue  #1, they really won't go for your position on issue #2.  Under such circumstances, do you really need to include issue #2?

In the statement of fact, they said, and I've found this to be true sometimes, it can be helpful to discuss the statutory framework at the beginning of that statement, so they know what they are looking for.  And make sure that the whole statute is somewhere they can see easily – in the text of the brief itself or the addendum. 

They like graphics, diagrams, photos, whatever, burned right into the brief text itself. 

As Judge Dyk said, the oral argument is fun, but it's the briefs that matter.

Next time:  a different panel's thoughts on that fun part – the oral argument.