The Trial Practice Tips Blog

Appellate Advocacy: It's Not Enough to Be Right on the Law

Since I'm a sucker for the writing of Karl Llewellyn, as demonstrated by this post, I was excited to see an article about  Llewelllyn's approach to appellate advocacy: "The Seven ABCs of Successful Appellate Advocacy," by Robert B. Gilbreath.

The article begins of page 13 of the current issue of Certworthy (pdf). Its important points apply to trial-level advocacy as well as appellate advocacy.

Certworthy is edited by Raymond Ward, who writes about the other articles in the current issue on his weblog, Minor Wisdom.

The "Raise or Waive" Rule

Howard Bashman's article, "Waiving Goodbye to Your Best Issues on Appeal," begins like this:

What issues can a losing party raise on appeal? With very few exceptions, only those issues that the losing party has properly preserved while the case was pending before the trial court. This so-called "raise-or-waive" rule is a central precept of appellate litigation in the United States.

According to Bashman, "As commonly understood and applied, the raise-or-waive rule is fair both to the parties and the trial court. Finding an issue waived on appeal is, however, a harsh remedy, and therefore appellate courts should resist the temptation to expand the rules that allow for a finding of waiver beyond their usual boundaries."

The Need for Appellate Lawyers

In a post titled "Use the right tool for the job," Brad Parker of Where's Travis McGee? posted about the need for litigants on appeal to hire a lawyer who specializes in appeals.

Brad's post highlighted an article in Corporate Counsel titled "Changing Horses Midstream," by David Walk. Now Brad has obtained permission to republish that article on his weblog. This link is here.

Common Appellate Mistakes

From FindLaw: "Appeal in Error: Common Mistakes Made in Appeals," by Scott P. Stolley--

After a trial, the losing party often has too much at stake, emotionally or financially, to let the verdict stand unchallenged. Appeal is the next option, but many litigants do not fully understand how different an appeal is from a trial. They may also underestimate the differences between trial lawyers and appellate lawyers. These differences may be overlooked when inexperienced litigants launch an appeal.

The mistakes discussed in the article include selecting the wrong counsel, misanalyzing the appeal, and underestimating the costs.

The article's author, Scott Stolley, was the editor-in-chief of a book co-edited by Raymond Ward of Minor Wisdom: A Defense Lawyer's Guide to Appellate Practice.

Who Should Argue the Appeal?

Judging from Brad Parker's post at Where's Travis McGee, as well as the comments to the post, it seems as if most agree: the appellate argument should be conducted by the lawyer who wrote the brief, not the one who tried the case.

If those happen to be one in the same, it means there's a lawyer who's way too busy.

When 104 Issues on Appeal Is At Least One Too Many

Here's an odd item for a Friday: "Court Tosses Appeal After Finding Lawyers Filed 'Preposterous' Number of Issues," by Melissa Nann Burke--

In an opinion published Dec. 10, [a] three-judge panel said the defendants had breached their "duty of good faith and fair dealing with the court," in part by failing to be concise in their appellate filings, as court rules require. The panel pointed to the "preposterous" number of appellate issues that [the appellant's lawyer] and his firm raised in documents submitted to the trial court -- 104 issues in all, if one doesn't count "sub-issues" that were also included.

"We can only conclude that the motive underlying such conduct is to overwhelm the court system to such an extent that the courts are forced to throw up their proverbial hands in frustration," [the judge] wrote.

"While such tactics may prove successful in other situations, we are unwilling to succumb to such chicanery and will not reward such misconduct."

Too bad for the lawyers.  With 104 issues on appeal, there must have been a reversible error in there somewhere. 

A Weblog Devoted to Appellate Practice

Appellate Law & Practice is a group blog "devoted to appellate law that will provide case summaries and tips on appellate advocacy." 

So far, there are more case summaries than tips, but case summaries are important too.  Link from Crime & Federalism.

Tips for Writing Appellate Briefs

From the appellate practice group of Mayer, Brown, Rowe and Maw comes "How to Write a Good Appellate Brief," by Andrew L. Frey and Roy T. Englert, Jr.

The article contains many tips, but especially noteworthy are those contained in these two sections: "Organization Above All" and "The Perils of Overstatement."

More From Judge Maag

Following up on yesterday's post, here's more from James May's interview with Justice Gordon Maag of the Fifth District of the Illinois Appellate Court, which appeared in the October 2004 issue of the Madison County Bar Association's Bar Rag.

Q. On the Appellate Court, once you hear arguments, what is the procedure for the judges to get together or discuss the case before a decision is rendered?

A. On the Appellate Court, approximately a month before the cases are argued, we receive the files for the cases that are going to be heard the following month. Through a random drawing there is tentatively an authoring judge that is assigned. There is nothing binding or final about that. That is subject to what happens in oral argument.

When we get to Mount Vernon for oral argument, the judges have all read the briefs and are familiar with the case. After it is argued, those of you who have argued an appeal will notice that we will hear arguments in one or two cases, and then we will take a short break for about ten minutes, sometimes longer. Then we will come back and hear one or two more appeals, and then take another break.

What is taking place during that break is we are having a conference on the cases that have just been argued while they are very fresh in our mind. We will discuss the issues and discuss what the judges on the panel believe the correct outcome, correct resolution of the appeal should be.

Sometimes we are unanimous and agree that it should be affirmed or reversed for a particular reason, sometimes we are uncertain, but we have a direction that we think the case might go. Sometimes it just requires more research by everybody involved. But we take a tentative impression vote, and after that impression vote is taken, assuming the person designated as authoring judge is in the majority, that person will go back and write up a proposed decision. If the designated authoring judge is not in the majority, then one of the other two judges will assume responsibility for writing a tentative decision.

Once the proposed disposition is completed, it will be circulated, and the panel will discuss it and comment further on it. And ultimately we end up with a decision that at least two--but usually it's a unanimous decision--that the judges can agree on, and it is sent to Mount Vernon for filing.

So it's a process that takes, oh, usually at least three months minimum to get to the point where the case has been circulated, the proposed disposition has been circulated among all the judges. And that is in a relatively routine case. The more complex the case is, the longer it may take.

Judge Maag on Oral Argument

In the October 2004 issue of the Madison County Bar Association's Bar Rag, James May interviewed Justice Gordon Maag of the Fifth District of the Illinois Appellate Court. (Judge Maag, of course, is running for Illinois Supreme Court, and will be on the ballot tomorrow in the Fifth District.)

Here is a selection from the interview:

Q. What advice would you give young lawyers in arguing Appellate or Supreme Court cases?

A. Be totally candid. Don't try to evade the questions that are asked. Answer them directly and specifically and truthfully. Don't be offended when the judges ask a question. Be pleased. Because sometimes young lawyers have a script. It's like a part in a play, and they want to go in and recite what they have to say. They know just how they are going to say it, and they have prepared the argument, and they have timed it. When they are asked a question, it takes away from what they want to say, and it throws them off the track that they want to be on.

But they need to remember it is those three judges on the Appellate Court that are going to be deciding their case. When they are asked a question, the question concerns a matter that is of importance to the people that are going to decide it. So be pleased when the question is asked and not offended, and answer it fully and completely.

Tomorrow: Judge Maag answers the question, "On the appellate court, what is the procedure for the judges to get together and discuss the case before a decision is rendered?"