Friday, September 11, 2015

Appealing Appellate Advocacy: Twenty-Five Rules

I will be speaking next week on appellate advocacy in employment cases to the Metropolitan Washington Employment Lawyers Association.  In preparation for this speech, I have spent some time speaking confidentially with federal appellate court judges about their views on what makes an effective appellate advocate.  This blog reflects their thoughts, as well as my own experiences.

1.       Know When to Shut Up
Do not try to speak over the judges.  Do not interrupt the judges.  Never start talking until you are sure that the judge has finished.  This is the first rule for two very good reasons, one obvious, and one less obvious.  The obvious reason is that, while simple decorum will not win you your case, rudeness is the surest way to turn an otherwise sympathetic judge against your case.  The less obvious reason for this rule is that you want to be sure that you answer the judge’s question (Rule 4) and that the judge may be trying to help you (Rule 6 “Know Your Friends”).  If you don’t follow this rule, then you cannot follow those.

2.       Moot Your Briefs And Argument
Many attorneys moot their arguments, but relatively few seek input on their briefs from colleagues with no dog in the fight to moot the draft brief.  One judge with whom I spoke was firm in his conviction that best practices demand that you allow briefs to be reviewed by other experienced colleagues.

3.       Moot Your Briefs and Argument AGAIN
Having participated in scores of moots of colleagues preparing to argue their cases, there invariably is more than one moot.  The first moot is usually an intense affair and often identifies substantial additional issues and approaches.  The second (and sometimes third) moot is useful to further refine those points.  In most cases, I am later told that the moots were substantially more difficult than the oral argument itself – which is the goal.

4.       Standard of Review
The proper standard of review is outcome determinative in many cases.  The judges know this, and you can expect the standard of review to play a significant role in many oral arguments, even if it is only “behind the scenes”.  

5.       Civility
Like Rule 1 “Know When to Shut Up”, above, this one emphasizes the need to maintain a proper level of decorum in the courtroom.  More specifically, you should show respect not just for the Court, but also for your opponent.  Do not engage in name calling, sniping, cheap shots, or other personal attacks.  You are here to argue the merits of your case, and you should not allow anything to distract the Judges from those arguments.  If you begin to fling mud, most of it will land on your own arguments.

6.       Answer the Questions
This means that, first, you should listen carefully to the questions (see Rule 1 “Know When to Shut Up”).  If the question is susceptible to a “yes” or “no” response then, in most situations, the first word out of your mouth should be either “yes” or “no”, followed immediately by an explanation.  While you should make sure to return, at the end of your answer, to your planned “talking points”, NEVER do so until you have fully answered the Judge’s question.  When answering, answer directly – do not try to prevaricate or, like a politician, change the subject.  The questions are a window into the judge’s thinking, and if you do not answer them, you can be sure that your opponent will.  If you do not know the answer, do not “wing it.”  Simply state that you don’t know and that you will address the matter in rebuttal.

7.       Know the Record
The record is the beginning and – often – end of every case on appeal.  Live it, learn it, love it – do not play games with it.  While you should, of course, present the record in the light most favorable to your position (see Rule 4 “Standard of Review”), you should not distort or exaggerate it.  Your credibility as an advocate is far more powerful than any temporary advantage you might gain through even well-meaning shading of the facts.  You can be sure that your opponent will seize on any errors or untenable positions as a means of undermining your stronger points, which might otherwise be unassailable.

8.       Know Your Audience
Prior to oral argument, you should observe each judge in action.  In some courts, you will know your assigned panel far enough in advance to view each of the assigned judges in action.  In other courts, you will not receive such advance notice and will have to be content observing a representative sample.  Knowing how each judge thinks will help you tailor your arguments to your audience.  You should research the judges before whom you might appear thoroughly.  This involves reviewing their decisions on the subject (of course) but also reviewing transcripts of prior oral arguments in which they participated.  

9.       Know Your Friends
Successful appellate advocates often spend a great deal of time anticipating hard questions (see Rules 2 and 3), sometimes so much so that they fail to recognize a “softball” when they see one.  Oftentimes oral argument is used by the judges not as a means of questioning you, but as a means of previewing their own arguments to their colleagues.  When a friendly judge hands you an easy question, be prepared to knock it out of the park.  

10.   You Are Not Funny
Yes, I mean you.  Unless you are a successful stand-up comedian (in which case, why are you still practicing law?), do not attempt to have a sense of humor in oral argument.  Even if a judge makes a humorous comment or joke, do not be tempted to join in.  Most likely any attempt at humor will fall flat and, even if it does not, it inevitably cheapens the points you are trying to make.  You want the judges to view your performance as one of studious logic, not rhetoric (see Rule 19).

11.   Review of Jury Verdicts
Increasingly, the appellate courts are called on to review jury verdicts.  In such a case, you should learn your jurisdiction’s law on the scope of review in such cases (see Rule 4).

12.   Review of Jury Instructions
Jury instructions can sink your boat.  To reverse the lower court, you will need to create a clear record in the jury charge session.  That session can often be intense and fast paced.  Thorough preparation is necessary if you are to have any hope of creating a clear record for appeal.  To the extent possible, you should try to anticipate the language which your opponent will request, and your objections thereto.

13.   The First Sixty Seconds
First impressions matter.  We often form snap judgments about the effectiveness of professionals in an astoundingly short period of time (perhaps even as little as sixty seconds).  You should make sure that your first impression is a good one.  The first sixty seconds of you argument should be carefully rehearsed to provide the judges with a good impression, as well as a clear, concise, and persuasive statement of your case, as well as a roadmap to the key points you will address.  This will help the judges understand the points you make later in the argument, and will also allow them to ask more effective questions, which will, in turn, allow you to use your time more effectively (see Rule 6 “Answer the Questions”).  A final reason to carefully plan the first sixty seconds of your argument is that it is the one portion of the argument over which you have the most control.  Once the questions start coming, it can be difficult for even a seasoned advocate to control the direction of the dialogue.

14.   Win the Battle – But Don’t Lose the War
While we, as advocates, are bound to zealously seek the best interests of our clients, you will nevertheless need to keep at least half an eye on the implications of your position for future cases.  There are two principal reasons for this.  First, especially if your client is a “repeat player” in litigation, how they win can sometimes be just as – if not more – important than whether they win.  A victory which results in a precedent that might haunt your client for decades to come is not a victory.  Second, the judges will certainly be interested in implications of your position for future cases – and so you must be prepared to explain what those implications are. 

There are several common issues which arise when discussing the future implications of a ruling, some of which are addressed below.

a.       The “Sluice Gate” Argument
The ruling will open the “sluice gates” of litigation, bogging the courts down in an endless quagmire of meaningless, and purportedly unresolveable, legal issues. 
As the plaintiff-appellant, or as plaintiff-appellee, you will need to be prepared to respond to this argument thoroughly with relevant facts.  Particularly useful in this regard can be examples of similar changes made by past precedent, or rules similar to the one which you are propose, which did not lead to a flood of litigation.

b.      Burden on Taxpayers
The ruling will so increase the costs of administering some governmental function that it would noticeably burden the taxpayers.  

Again, you should be prepared with law and facts to respond to this argument.  In this area, particularly, it may be that journals and other relevant literature might be used in your brief and argument to bolster your position.  As always, when using such sources (and especially statistics), you should be thoroughly familiar with the opinions of your court regarding the relevance and usage of such evidence in an appellate context.

c.       The “Anti-Business Climate” Argument
The ruling will so offend the business community that they will pack up shop and move somewhere else.  

One retort to this argument can be the simple fact that the District of Columbia is a vibrant business community.

15.   Do Not Exaggerate (It Would Be The End of the World)
The most persuasive aspect of your presentation is not your arguments – it is your credibility.  The moment that you are caught exaggerating the record (which you should know cold – see Rule 7) or the law, you will lose that credibility with the panel.  

16.   Counsel’s Table
This is one rule where there was some disagreement.  My own experience, and those of some individuals with whom I have spoken, is that having anyone sit with you at the counsel’s table is, at best, a distraction.  Others, however, have indicated that an assistant who can pass brief notes is not a meaningful distraction, and that judges understand that few advocates possess the level of recall needed to effectively “go it alone”.  

That said, there was one point of agreement – leave your client at home.  Lawyers whose clients are in attendance may feel the need to grandstand to impress their clients – which can only detract from the quality of their arguments.  Your client is free to review the transcript later or even listen to the argument contemporaneously in jurisdictions where that option is available.

17.   Framing the Appeal
Returning to the suggestion that you moot your briefs (Rules 2 and 3), you should also moot the nature of your appeal.  What are the issues in the lower court which you can win on, what if done wrong, can be a basis for reversal?

18.   Follow the Rules
Details matter.  You should know the rules of the Court and follow them scrupulously.  This applies not only to crucial procedural issues, but also to the minutiae of font size, pagination, and required disclosures.  Disregard the rules at your peril.

It is worth emphasizing that your briefs should be letter-perfect – no typos.  Not only will typos distract the judges from your argument, but they also demonstrate a lack of care that may make the judge question the amount of attention paid to the substance of your argument.

19.   No Rhetoric
You should rely on facts and law in your argument.  Leave the bloviating at home.  The judges are neither your client nor a jury, and they are unlikely to be swayed by rhetoric. As with other rules here, the simple fact is that rhetoric is a distraction from, and cheapens, your argument.  

20.   Have a Conversation
Look the judges in the eye when you are speaking.  Do not be captive to your notes, and instead focus on paying attention to the judges, identifying their concerns, and addressing them.  If you must take notes to the podium, keep them brief, and general – a reminder of your roadmap, not a straightjacket.

21.   Dress to Blend In
Sometimes the squeaky wheel gets the grease – but in Court, the nail that sticks up gets pounded down.  You should dress professionally and in a manner that does not draw attention to yourself.  Anything that draws attention to you distracts from your argument.

22.   Listen to What is Troubling the Judges
This is part and parcel with knowing when to shut up (Rule 1) and having a conversation (Rule 20).  The most important information you get during oral argument comes from the judges themselves.  The questions will tell you what they view as important – or irrelevant – to your matter.  They may also provide clues into internal disagreements on the panel.  A wise advocate listens carefully and is familiar enough with her arguments to tailor them on the fly to address what is on the judges’ minds.

23.   Tell a Compelling Story
Those first moments are your chance to encapsulate what this case is all about.  Tell that story in just a few sentences – and make it compelling!

24.   Think Like a Defense Lawyer
As an employee-side lawyer, you can become a victim of the syndrome of talking to yourself.  Instead, you must think like the other side – management.  You actually can be a better advocate for management because you are intimately familiar with all of your weaknesses – especially after mooting your briefs and arguments twice (see rules 2 and 3).  Ask yourself the hard questions, and prepare the answers.

25.   Know the Defense Cases Better than They Do
Read their cases and be prepared to address them.  If possible, explain how they support your own position.

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