Be Appealing

I recently attended an Association of Business Trial Lawyers luncheon program called “Everything Trial Lawyers Need to Know About Appeals.” The program featured Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals; Justice Elizabeth A. Grimes of the California Court of Appeal, Second District, Division 8; and Miriam A. Vogel, a retired California Court of Appeal judge currently with Morrison & Foerster.  Here’s a summary of their worthwhile advice:

Save your breath. Chief Judge Kozinski advised attorneys to heed judges’ signals that they don’t need to continue arguing. He said if, during oral arguments, opposing counsel has finished speaking and a judge asks you if there’s anything in the brief that hasn’t been adequately addressed, they are signaling to you that you’re winning, and that you need say nothing more. Everybody, Judge Kozinski said, would appreciate avoiding an additional 15 minutes of you preaching to the choir. Along the same lines, Justice Grimes said that if a judge suggests you reserve your time for rebuttal, that too is a signal that you don’t have to say anything else.

Cite your sources. Judge Kozinski also recommended that attorneys bring written supporting material for anything they mention in oral arguments. He said he’s surprised by how often during oral arguments a judge asks a lawyer to provide the citation and the context, but the lawyer doesn’t have the information with them.

Know your audience. Miriam Vogel pointed out that in the state appellate system, you know which judges you’ll argue before, so you can and should gear your argument to them (In the federal appellate system, many seats are currently unfilled and other judges fill in, so you won’t know whom you’ll argue before.)

Don’t use abbr. Trial lawyers have their own shorthand—FAC for First Amended Complaint, for example. Don’t use those abbreviations in a brief, Vogel said: Judges don’t use them, they may not possess the same expertise you do and, as some judges have been on the bench for decades, the shorthand may have been different when they were practicing.


Spin a yarn. Attorneys should write briefs somewhat as if they were writing them for a general audience, Vogel said. After all, she noted, as readers of briefs, judges are more like laypeople than other attorneys: they aren’t familiar with the facts of the case and they’re generalists. Briefs should have a theme and tell a story (i.e., have a beginning, middle and end). They shouldn’t take the case’s facts for granted. In fact, Vogel suggested, brief writers should guard against this by having somebody unfamiliar with the case (a colleague, for instance, or even their partner) read the brief and explain back to them what the case is about. Using an engaging style and tone is important, Vogel said; the judges and their staff attorneys read briefs all day, so giving them something readable puts you ahead of the game.

Please answer the question. The program participants stressed that attorneys shouldn’t interrupt judges’ questions, and should answer queries immediately and directly. If you don’t have an answer right away, they said, it’s OK to be silent while you consider it. If you really don’t know the answer, don’t extemporize, fib or B.S.—just request to brief the point within a reasonable time period.

Listen up. The program participants also made the point that oral arguments, despite their name, are more important for listening than for talking. Speaking more than you need to in oral arguments just means giving yourself more chances to put your foot in your mouth. More importantly, when the judges speak to you, that’s the only time in the appellate process when information is flowing from the court to you, rather than the reverse. That information, then, is really valuable in strengthening your case, and you would benefit by paying careful attention to it.

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