Bah Humbug

It's the holiday season, no matter which holiday you celebrate.

It's a time to reflect, to be thankful for what we have, and to give of ourselves to others. Not surprisingly, it's also a setting for novels featuring cantankerous protagonists who, after having the Dickens scared out of them, learn to be thankful for what they have and to be more charitable.

In that spirit (pun intended), I offer my reflections and give some helpful advice on appellate advocacy - all using the voice of a blunt, tongue-firmly-in-cheek curmudgeon.

Here it goes.

When deciding what issues to raise on appeal, exercise judgment. They say there is no such thing as a dumb argument. "They" are wrong. A successful argument on appeal is a bit like a sniper's shot: It is precisely aimed at the portion(s) of the trial court proceedings most likely to net you a reversal - that is, to the types of trial court rulings that are accorded the least deference on appeal and where the resulting error is most likely to be prejudicial. Limit the appeal to the best three to five such arguments. The odds of there being more than three to five such fatal errors in a case are slim. Yet we seem to see more and more opening briefs that urge 10, 15 or even 25 grounds for reversal. The trial courts aren't getting worse at their jobs; advocates are getting less picky about what they assert as error. This is bad strategy because the good arguments end up drowned out by the cacophony of "bad shots." Put differently, good arguments are like Waldo, and good briefs don't hide him in a sea of distraction and force the court to play "Where's Waldo?"; good briefs point right to Waldo and shout, "There he is!"

"That's easy for a judge to say," advocates sometimes reply, "but advocates don't know which arguments a court will see as a Waldo." In assessing arguments, however, appellate judges are not picking winning lottery numbers out of a bin or selecting the best in show dog based on subjective criteria. We are evaluating the merits of the arguments objectively, based on the law and the facts presented through the appropriate prism of appellate review. We all learn to do this type of evaluation in law school. So take off your advocate's shoes, put yourself in a judge's shoes and ask, "Would I find this argument persuasive?" At a minimum, ask a colleague uninvolved with the case to provide their outsider's read on your contemplated arguments.

When drafting your brief, here are a few things to remember.

Remember your audience. By the time a case is appealed, the parties and lawyers have been living with it for months, if not years. The appellate court has not, and is probably seeing the case for the first time. You wouldn't start watching the Lord of the Rings trilogy by starting mid-way through The Return of the King (the third movie in the trilogy). Think of the beginning of your brief as the helpful voiceover at the beginning of the first movie that succinctly orients the viewer: Explain what's at stake, give the essential backstory, and move quickly to the facts and law needed to decide the appeal. I can't recall how many opening briefs I have picked up recently, and then put down in frustration in favor of starting with the responding briefs, because the opening brief was indecipherable without an intimate and complete familiarity with the record and the proceedings. You don't want to be the author of a brief the judge can't get through.

It's not called an "overlong," it's called a "brief." The Rules of Court set a maximum word limit. More and more often, we are seeing briefs that treat the maximum as if it were the minimum (with briefs clocking in at 13,994, 13,998, and sometimes even 14,000 words on the nose). Resist that urge. As Jeff Goldblum's character once said, "your [lawyers] were so preoccupied with whether or not you could [write a brief at the maximum word limit], they didn't stop to think if they should." You shouldn't. If you raise three to five precisely aimed arguments, you should in most cases come nowhere near the maximum word limit. We get it: Clients sometimes want you to say X or Y in the brief, but unless X or Y is likely to help the appeal's likelihood of success, it is just more spaghetti on the wall or misfired shots that make it harder for the court to find the needle in the haystack of verbiage. (How's that for a muddled metaphor?)

Be forthright. Do not try to hide, bury, or ignore law or facts that hurt your position on appeal. "Bad" facts and "bad" law have object permanence. Hiding them from us doesn't make them go away, and we will find them. Apart from risking a violation of your ethical duty of candor to the court, you also lose credibility with the court - which can be a far more devastating blow to all of the arguments in your brief (to say nothing of your general reputation in the appellate community).

It ain't therapy. Unlike some Daily Journal articles, appellate briefs are not a form of cathartic therapy. We see a surprising number of briefs that level ad hominem attacks on the opposing party, opposing counsel, and the trial judge. Unless you are raising a claim of attorney disqualification or judicial bias, we don't care. Our job is to decide the merits of your appeal; whether you would prefer not to hang out with other people involved in your case in your free time is of no concern to us. So, to quote Elsa, "Let it go."

When it comes to giving good oral argument, keep in mind that oral argument is the last course in the meal you're serving up, and the appellate court has already eaten and digested the main course of your brief(s). Regurgitating your entire brief during oral argument is akin to making us eat the same thing twice; all that's likely to do is make us feel (intellectually) sick.

If you are the appellant, focus during oral argument on the two or three points you most want us to focus on. As an advocate, I usually found that the argument I made in my brief evolved a little as I prepared for argument; share those evolutions with the court. Remember the standard of review. You may have a passionate jury argument at the ready, but we are not a jury and cannot act like one.

If you are the respondent, read the room. If the panel has given a tentative ruling in your favor or the tenor of the panel's questions suggests the judges are leaning toward affirming, remember the Hippocratic Oath, and then do no harm to your case. The more you talk in this situation, the more you risk snatching Defeat from the Jaws of Victory. If you find yourself in this fortunate situation, limit your argument to responding to the panel's questions if you have an answer different than the appellant's, to correcting any misstatements about the law or the record made by your opponent or the court, and to responding to anything in the appellant's reply brief that you feel cannot be left dangling out there unaddressed. Then invite questions from the panel and, if there are none, sit down.

Although I urge you to seriously consider the advice in this article, please know that the curmudgeonly tone in which it is being delivered is meant to be facetious and fun. What is more, I am one among the 100-some (very amiable!) state appellate jurists in our state, so my advice is mine alone.

But I hope it is helpful, and that your 2023 is filled with lots of appellate wins, very few grumpy judges, and much health and happiness. At least those are my great expectations for us all.

This article is the first in a week-long series of columns that offers tips on how attorneys can improve their legal writing skills.