Top Ten Worthless Pieces of Appellate Advice

I have seen all of these tidbits offered by “experts” on appellate work in one place or another.  I can’t believe that people pay actual money and get CLE credit for listening to them.  Therefore, I figure since you are not paying for this blog, and the First Circuit doesn’t have an opinions today, I will give them to you.  For free.  (And if you want irony, see here.)

1. Make your point clearly. Well, duh.  Of course, what is clear to one might not be clear to another.  Likewise, maybe some parts of your argument need to be obscured.
2. Write simply.  Unless you are a judge that thinks it is more important to look smart than to actual articulate a useful opinion, you can’t get away with using or legalisms.  Of course, some people don’t like to actually read what others write and will always accuse you of writing in a manner that is “too complicated.” 
3. Think of yourself as having a conversation with the judges.
4. Don’t misstate the law.  Of course, one man’s misstatement is another man’s construction.  In most appellate decisions, at least one party will accuse the other of misstating the law, and sometimes the court will say that one party is dead wrong, only to be reversed by another court who says that the court was wrong.
5. Don’t urge an “activist” result.  Since “activist” (outside the Sunstein-like statistical context) is purely a playground insult, this is something that the other party is always doing.  (Nevertheless, most advocates will tell you that they should inform the court that their result is the only logical conclusion.)
6. Be logical, since lawyers don’t understand logic.  In fact, lawyers DO understand logic.  However, when you get 250,000,000 people together and tell them to run a country, it isn’t logical, and it looks more like a reality TV show.  Since at least one of those people is likely to be your client, and they are likely to have been injured by another one of those people, they might be complaining of an illogical situation, and there is nothing that you, as a lawyer, can do to change the past so as to make it more logical.
7. Obey all court rules.  While this is good advice, a good lawyers knows which rules he can bend.  If you are really good, you can convince the court to change the rule to fit your needs.
8. Give the rule/standard of review/relief sought.  These are things we go to law school to learn how to manipulate.  Nobody wants to do anyone else’s work for them.
9. Only give your best arguments.  Ironically, those judges who proclaim that appellate counsel should use their "best” arguments, just want lawyers to waive arguments on behalf of their clients, thereby making their job easier.
10. Don’t tell the court that the popular opinion demands a specific result.  Unless you are arguing before someone like O`Scannlain or something.  Then you have to be subtle.

Comments

[ycl]

Love it. I've always wanted see, though, a Top 10 list of advice for appellate JUDGES. Wisdom along the lines of, "Write your opinions yourself -- or at least proofread what your neophyte law clerk wrote for you." Or, "Always pretend that you are listening to the lawyers, even when you are thinking about what you'll be having for lunch."

[Mr Name]

A lot of them do ring hollow, but #1 and #2 cannot be emphasized enough. Lawyers do a bad job of making themselves clear.

Maybe too many lawyers follow the format of most appellate opinions, with unnecessary background legal principles and unnecessary facts.

Long, boring writing makes the reader fog over. They will put your brief down and pick up something else to work on.

[S. COTUS]

Right.

People should be snappy and insert cute “zingers” into appellate briefs. We could hire a bunch of ad agency types.

All of these points have been given by some judges and some members of bar in one form or another. They are worthless, because being an advocate is much more than just writing simple sentences, but, actually trying to massage an argument and a set of facts (usually bad facts) into precedent or a judge’s political views.