Back in 2010, I wrote an article for this blog on Top 10 Tips for Young Trial Lawyers It remains one of the most viewed and re-viewed articles on my blog. Since its publication, there has not been a week that it has not been viewed. This week, I judged New York Law School’s Wagner Moot Court Competition which has law students compete in an appellate argument format in the area of Labor & Employment Law. Watching those talented students compete made me think about how unprepared I was for my first appellate argument so I figured I would write this article and hope it helps those lawyers getting ready to argue their first appeal
1. Its All About the Briefs We like to think that our oratorical skills can persuade any judge on any given day. But the sad truth is that by the time you get up to make your oral argument, the judges have read the briefs on the case and are nearly ready to make a decision. Most appellate judges use oral argument to make sure they haven’t missed something or to make sure they have understood everyone’s legal arguments. So don’t skimp on writing a thorough yet concise, clear and persuasive brief. Its 90+% of the job. Maybe a top 5 list for appellate briefs is a future blog post. Stay tuned
2. Examine the Reply Brief The appellant files a brief, the opponent files a response brief, and then the appellant gets the last word in a reply brief. When I taught Appellate Brief Writing at New York Law School, I would bring in judges from the appellate courts to address the students near the end of the semester. Almost all of them said that they read the reply brief first and worked backwards. Even if you are opposing the appeal, read your adversary’s reply brief to see what they feel are the weakest parts of your argument and the strongest parts of theirs. Judges say that the reply brief often synthesizes the issues between the parties to their narrowest form. Keep that in mind when you are appealing and have to draft a reply brief
3. Learn the record cold Here’s the thing. While most new lawyers believe that the law is paramount, the vast majority of appeals do not present new or tricky issues of law. Instead, the issue is usually whether the facts presented fit into the particular law or legal analysis used by the court below. Was there sufficient proof that the plaintiff was fired due to discrimination? Does the new product put out in the market meet the statutory definitions of the regulations being applied to it? Etc etc. Not to discount the importance of law obviously but on appeal be prepared to argue the facts. Know the key documents and where they can be found in the record. Have the critical sections of testimony highlighted in your brief and committed to memory for oral argument.
4. Brevity is the soul of sound legal argument Sure Shakespeare wrote that brevity is the soul of wit but it also is a key to winning an appeal. Following up on point 3, appellate judges hear arguments on the same areas of law all the time. Don’t waste their time by going into excessive references to the standard of review or basic legal issues. Start your argument with the strongest point you have. Right after you introduce yourself to the bench at oral argument, open with one sentence that summarizes your strongest legal point. “The court below wrongly held that two prior similar accidents on defendants’ property were not sufficient notice of a dangerous condition.” Be direct and avoid legalese. Most appellate arguments take less than 5-10 minutes. Courts don’t want to pussyfoot around. If the court is not persuaded by your strongest point then you are doomed anyway. When asked a question – answer it directly not with a hypothetical or long-winded speech. If it calls for a Yes or No answer, say Yes or No first and then quickly explain why if you wish.
5.Practice,practice, practice As with everything else in litigation, there is no substitute for preparation, especially when doing something you have not done often before or are not comfortable doing. Read and re-read the briefs. Read and re-read the record. Learn the key cases you will be relying on. While you cannot predict what questions you will be asked, practice your opening lines and commit them to memory. If you are a solo practitioner, find another lawyer or law school friend to “moot” the argument for you. Send them the briefs and the record and do as many practice arguments as you can fit in. Either go to the court to watch a half day of arguments or watch them online as now the Appellate Divisions stream arguments. Become familiar with the practice and procedure of arguments so that the court does not seems so foreign to you.
Hopefully this guide will be helpful to those arguing an appeal for the first time. It is a great legal experience and one that makes you really “feel like a lawyer.” Its a challenging battle of language and wit that can be of fundamental importance to your client.
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