The Eight Percent Solution


Following up on my previous entries, here is the full skinny on the session on appellate practice held a week ago at the winter bar meeting.  It was well attended and we had a great set of panelists.  I only wish we had had more time to go into more depth on some of the topics.

The subject was the ten biggest mistakes made on appeal and here’s who talked on which mistake:

  • Judge Lipez – overreaching & tone

  • Justice Alexander – failure to follow the rules

  • Justice Levy – ignoring the standard of review & not answering the question 

  • AAG Macomber – avoiding the bad fact/decision & including too many issues

  • Melissa Hewey – use of exhibits & post-argument filings

  • moi – appealing in the first place.


  • Judge Lipez gave a thoughtful and succinct summary, with specific examples, of what constitutes overreaching and improper tone, and noted, among other things, that an ad hominem or improper tone only results in loss of credibility.  There’s no upside on the overreaching front, either, because the clerks are going to check all your cites in any event. 

  • Justice Alexander gave a plea in particular with respect to the appendix.  I’ve blogged on this issue before, but I will just note my growing personal understanding of the critical importance of this point.  The busier a court is, the more it needs to rely on the lawyers to (a) give it what it wants and (b) cull a workable portion of the record on which it should focus.  Judge Lipez noted that the addendum is a useful mechanism for the really important items in the First Circuit (in the Law Court, Justice Alexander noted that there should be no duplicates of anything, so be more cautious about using an Addendum to your brief there).

  • Justice Levy gave audio examples of his topics, and I thought made a very interesting point about it being ok not to answer the question, in that lawyers should be very cautious about making concessions in the oral argument.  While other judges might grow frustrated at the failure to answer a yes or no question yes or no, Judge Lipez and Justice Levy observed that they don’t ask a lot of yes or no questions, and they understand that more fulsome responses are often required.

  • AAG Macomber returned us to Judge Lipez’s overreaching topic, by noting that it does no good to overreach by avoiding the bad fact or question.  Cluttering your case with too many issues also doesn’t help.  Given that he works in the criminal arena, he pointed out that a defense lawyer can always choose to focus on the strongest points in his or her brief, and let the client, if he or she insists, brief the other points that he or she may want, separately themselves.

  • Melissa Hewey concisely noted that the use of exhibits never works, and everyone agreed, with the limited exception that if you have a land use case or similar appeal where a map is useful, then the mechanism to deal with this may be to make sure the map is in the record, and give the judges individual copies of the map, and, if you can, to follow in the argument.  On the post-judgment front, she reported the statistics that graphically demonstrate that a moti0on for reconsideration rarely wins in the Law Court.  Justice Alexander, while agreeing that such motions that just re-hashed the argument is not appropriate, said that he thought a motion correcting a clerical-type mistake (mis-citing a statute etc.) or addressing a point in a decision that had not been briefed and had unintended ramifications could be the exception to the rule.  On the Rule 28(j) front, Judge Lipez noted that counsel should adhere to the rules and limit themselves.  Note that there is no state counterpart to Rule 28(j), and although people seem to file the equivalent type letters with abandon before the SJC, your shouldn't.  Instead, file a motion to allow you to do so (and don't do it often). 

  • I basically cited the statistics that show that, looking at the brief covers, “blues” generally lose.  The general statistic in the First Circuit is that @ 8% of cases are reversed.  The statistics from the Law Court are more opaque, but after the session, Justice Alexander told me that the number is about the same – @ 8%.

As I noted, my regret is that, with such a great group, we didn’t have more time to go into these topics or others in more depth.  I personally could have asked a lot of questions that we just didn’t have time for.  I’d be interested in the thoughts of anyone who attended this session as to what was good or bad and what topics should have been included etc., so if you have any comments, please send them along.