Appellate Judges Tell Dallas Lawyers How to Handle an Appeal

The Dallas Bar Association Judiciary Committee recently hosted a panel discussion with three prominent appellate judges.  Catharina Haynes is the only federal appellate judge in the Dallas-Fort Worth area.  After years of sitting as a Dallas state trial court judge, she was appointed to sit on the Fifth Circuit Court of Appeals.  Debra Lehrmann is the only Texas Supreme Court justice from Fort Worth.  Along with Chief Justice Nathan Hecht, she is one of only two Texas Supreme Court justices who began judicial service in North Texas.  After a distinguished career in a large Dallas law firm, Elizabeth Lang-Miers serves as a justice on the Fifth District Court of Appeals, which reviews the cases from Texas state trial courts in Dallas County and five other counties.

The three panelists offered a number of helpful tips for lawyers practicing before appellate courts.  Here are some that I found particularly helpful:

1. Limit the number of issues being raised in your appellate brief.  Judges loathe briefs that appear to be throwing things at the wall hoping that something will stick.  And, by including a relatively week issue in your brief, you will make your strong arguments appear less credible.

2. Keep in mind that an appellate judge has a heavy reading load.  As such, to avoid potentially frustrating the judge, keep your brief focused and concise.

3. Study opinions in cases analogous to yours to determine what underlying facts and what legal authority were necessary to write those opinions.  Then, draft your brief so as to include the facts and law you anticipate will be helpful in writing the opinion in your case.

4. Don’t just recite the standard of review in your brief.  Instead, incorporate the standard of review throughout your legal arguments.  Specifically, for each of your legal arguments, explain the impact of the standard of review on that argument.

5. Before you begin writing your brief, give some thought to what relief you would like the court of appeals to grant.  Then, keep that relief in mind as you are formulating your arguments.

6. Your brief should provide an orderly roadmap to a judge who is writing an opinion in your favor.  Make the roadmap easy to follow.

7. Your brief should tell a good story.  The more enjoyable your brief is to read, the better.

8. Your brief should be clear and easy to follow.  After you finish writing your brief, set it down for a few days, then pick it up and read it again to confirm that it still makes sense to you.  Even better, ask others to read your brief and let you know what they had trouble understanding.

9. Don’t disparage anyone else involved in the case (e.g., opposing counsel, opposing party, trial court judge).  Appellate judges do not appreciate ad hominem arguments.

10. The table of contents can be a powerful persuasive tool.  Don’t waste this opportunity to persuade an appellate judge, as this may be the first part of your brief that he or she reads.

11. An appellee should address the appellant’s points in the same order raised by the appellant.  If you absolutely must deviate from the appellant’s order, your appellee’s brief should point this out to the court.  Otherwise, you are wasting the judges’ time by making them determine which appellee’s point matches up with which appellant’s point.

12. Don’t make an appellate judge flip back and forth between your brief and another document.  Instead of making the appellate judge look at the document (e.g., the lower court’s judgment / opinion, the underlying contract, etc.), be sure to summarize the document’s relevant language in your brief.

13. Don’t take any liberties with what is contained in the record or in case law.  The judge’s law clerk will catch such deception and will point it out to the judge.

14. It might be helpful to include a visual aid in your brief (e.g., diagram, photograph, etc.) to help the judge understand the underlying facts.  If, for example, you are attempting to show the judge that the text of an underlying contract was too small, you could include an actual-size reproduction of the contract’s text.

15. Allow plenty of time to edit your brief.  A poorly-edited brief is not likely to impress an appellate judge.

16. Acknowledge weaknesses in the law and in the facts.  If you don’t point out your weaknesses, an appellate judge will discover them anyway, costing you credibility with the court.  Moreover, when you point out your weaknesses, you have an opportunity to explain why the judge should rule in your favor in spite of the weaknesses.

17. Give a lot of thought to what you request in the prayer of your brief.  Your prayer should not simply be an afterthought.  If possible, in your prayer, be sure to include alternatives to granting you all of the relief you are requesting.  Otherwise, a judge who is not inclined to give you all of the relief you are requesting might have to give you no relief at all.

18. When you are filing a petition in a court of discretionary review (such as the Texas Supreme Court), effective appellate advocacy is much different than it is when filing a brief to a court of mandatory review (such as the Dallas Court of Appeals).  In a court of mandatory review, your focus should be on explaining why the lower court was right or wrong.  In a court of discretionary review, your primary focus should be on why the issue you raise will significantly impact jurisprudence . . . and whether the lower court was right or wrong should be no more than a secondary focus.  In a court of discretionary review, you should try to make your issues stand out from the issues in other cases vying for the judge’s attention.  To do this, you should have a “hook” and repeat that hook throughout your filing.  Good drafting and editing is even more important in a court of discretionary review than it is in a court of mandatory review.  That is because, even if your issue could significantly impact jurisprudence and the lower court was obviously wrong, a judge is not inclined to grant review if your drafting is weak.  Rather, the judge is likely to simply wait to grant review until a similar issue is raised by a well-drafted brief in another case.

19. When preparing for oral argument, think outside the box as to all sorts of questions that you might be asked.  Don’t just think about your case.  Instead, think of questions about how various rulings in your case could impact other cases.  Be prepared to address questions about a hypothetical case with facts slightly different from yours.

20. Don’t argue that an appellate court should rule in a certain way merely because a sister court (or a lower court) has done so in another case, as this is simply not true.  The Dallas Court of Appeals is under no obligation whatsoever to rule consistently with the Fort Worth Court of Appeals.

21. When preparing for oral argument, make yourself thoroughly familiar with the record.  Appellate judges don’t have much patience with a lawyer who hasn’t done so prior to argument.  If you aren’t willing to commit the time needed to learn the record, then you probably shouldn’t request oral argument.

22. If there is one point that you really want to make at oral argument, you should plan to make it at the very beginning of your argument.  Once the judges being asking you questions, you may never have the opportunity to make the one point that is most important to you.