I recently attended a CLE presented by Catharina Haynes, the only federal appellate judge with chambers in the Dallas – Fort Worth area. Judge Haynes offered a number of valuable tips on appellate advocacy:
1. The table of contents is often the first part of your brief read by an appellate judge. As such, don’t neglect this important opportunity to advocate your position.
2. A table of authorities should never use “passim.” Judges want to know exactly where in a brief to find your argument about a particular legal authority, even if this argument is on many different pages.
3. Appellate judges are experts on the science of judging, but cannot possibly be experts on every substantive area of law. So, don’t assume that the judges assigned to your case will be familiar with the area of law at issue. Instead, your brief should provide a basic tutorial about the underlying law.
4. If your case has any warts, be sure to point them out in your brief and address them. If you ignore the fact that your case has a potential shortcoming, your credibility may be seriously damaged with the court. Neglecting to mention adverse facts or legal authority is tantamount to outright dishonesty.
5. Judges can quickly become frustrated with a lawyer who gets sloppy with references to the appellate record. If you indicate that something is somewhere in the record, be absolutely certain that it is really there.
6. The court’s workload is quite heavy. In light of this, judges often become quite displeased when they determine that a brief is longer than absolutely necessary.
7. Many appellate attorneys don’t put enough thought into drafting their prayer. The prayer is an opportunity to advocate your position and should not simply be boilerplate language. Be cognizant of the fact that you may need to pray for several alternative remedies, as the appropriate remedy may vary depending on which of your arguments the appellate judges ultimately adopt.
8. Rather than merely including the required documents in your appendix / record excerpts, be sure to include other materials which might be especially helpful to the court. If, for example, there is an affidavit which is crucial to your case, that affidavit should likely be included.
9. Even when you are certain that you won’t be able to persuade one of the judges on your panel, don’t make the mistake of failing to address that judge’s concerns about your case. Before the other judges on your panel sign-off on an opinion in your favor, they will likely need to respond to that judge’s concerns. And you, of course, will want to make this as easy as possible.