Sunday, June 4, 2017

Appellate Advocacy

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1. Pick an issue that you think you can get oral argument on.

Judge Higginson offered candid advice to lawyers for appellants: if your case doesn’t get oral argument, it won’t get the same level of consideration as an argued case, making it more likely that your case will wind up with an affirmance — i.e., you lose.

Perhaps in theory, argued cases and “submitted” cases — cases submitted based on the briefs and record, without argument — should get the same level of scrutiny. But as a practical matter, that’s not how things work. As Judge Higginson explained, if your case doesn’t get oral argument, the judges won’t have to sit down and prepare for argument, which involves close reading of the briefs and record; the judges won’t get to hear from you as an oral advocate, emphasizing key points or dispelling misimpressions; and the judges won’t discuss the case face to face with their colleagues, instead handling the matter by email.

If three judges are going to tell a fellow federal judge that she got it wrong, they’re most likely to do it after having held oral argument.

2. Look for issues that are (a) preserved, (b) legal in character, and (c) outcome-affecting.

This seems pretty self-explanatory. If an issue wasn’t preserved, it’s very difficult to win reversal based on it. If an issue is more factual than legal, the appeals court is likely to defer to the trial court (recall Mark Herrmann’s wise words: “standard of review decides cases”). If an issue didn’t alter the final outcome of the case, there’s no reason to disturb the judgment below (think “harmless error” in criminal cases).

How can you find such issues? Judge Higginson said to look out for intra-circuit conflicts, or inconsistencies between different precedents from your circuit; inter-circuit conflicts, which suggest that a legal issue doesn’t have an obvious resolution; questions left open by the U.S. Supreme Court (e.g., “we do not decide [x]” in this ruling, or an issue raised by a certiorari petition that SCOTUS keeps relisting); and questions that get debated in law professor blogs, which often involve unsettled issues or percolating problems in an area of law.

Possible winners: issues that the district court explicitly struggled with (e.g., “I’m having a hard time with this issue”), or issues that the district court didn’t struggle with enough (e.g., the court ruled on a key issue without holding a hearing or explaining its reasoning).

Likely losers: challenges to the sufficiency of the evidence. If you must raise a sufficiency claim, write a brief that’s rich in record citations, and try to marry the sufficiency challenge to a legal issue if possible.

3. Think about who’s involved: the trial judge, your opposing counsel, and your appellate panel judges.

Again, in theory, these types of considerations maybe shouldn’t matter. It should all be about the facts and the law, right?

As a practical matter, though, things like the district judge being reviewed, the lawyers involved in the case, and the appellate judges on the panel actually matter. Some district judges have better reputations than others at the circuit court, as do some lawyers. And you definitely want to find out how the members of your appellate panel have ruled in the past on issues like the ones raised in your appeal (which you can figure out easily through judge-based searches on Westlaw and other legal research platforms).

4. Don’t play fast and loose with the facts or the law.

Okay, this is an obvious one, but Judge Higginson made an additional observation about what he referred to as “the age of instant verification.” An increasing number of judges are reading briefs electronically instead of in paper form, and these judges can access the portion of the record or case that you cite with a simple tap of the finger; they touch your citation, and they’re immediately taken to the factual or legal material being mentioned. So if you make a misrepresentation, it’s easier than ever for you to get busted.

Things that judges look out for when reading briefs: (1) ellipses (the judges will check to see what you left out); (2) words like “clearly” or “obviously” (especially when they’re not accompanied by citations); and (3) substantive matters discussed in your footnotes (because lawyers like to subordinate hard issues, and that often means dropping them in the footnotes).

5. Moots matter.

The Justice Department requires its lawyers to go through moot arguments in every appeal, and with good reason. Arguing your case before a moot court composed of colleagues playing the role of judges is still one of the best ways to prepare for presenting to an actual court.

Think carefully about the colleagues you pick for your moots. You want skeptical lawyers who aren’t afraid to grill you (which is why having subordinates on your moots — e.g., associates if you’re a partner — isn’t always the best idea). Having people who will put the time in to prepare for your moot and familiarize themselves thoroughly with your case can be helpful because they will subject you to the toughest questioning. But it’s also not a bad idea to have one questioner who isn’t as deeply familiar with the case, to simulate a busy judge who doesn’t have the time to give your case as much attention as it might deserve. As experienced advocates know, judges vary significantly in their levels of preparation for argument.

6. Use your last two minutes wisely.

When arguing your case, watch out for that yellow light, which signals that your time is running out. In those final two minutes or so, try to make the key points that you really want to raise for the judges. At the start of an argument, you can and should answer the questions posed by the judges. But as you enter the home stretch, it’s perfectly fine to say something like, “With the court’s permission, in my remaining time I’d like to make two final points.”

It’s not just jury trials that are vanishing. As appellate courts decide more and more cases based on the briefs, oral arguments are getting harder to come by as well. So try your best to get oral argument in your case — and when you get that opportunity to argue, make the most of it.


David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at

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