The Best in Appellate Advocacy

 

Once again, it is time to feature appellate advocacy. The Appellate Prosecutor: A Practical and Inspirational Guide to Appellate Advocacy is a book for appellate advocates. Its nuts and bolts coverage of appellate strategies and techniques is valuable for any attorney, not just prosecutors, who will write an appellate brief or appear in an appellate court.

Judge Charles Moylan, thirty-year veteran of the appellate bench and renowned lecturer put it this way:

"This work in my judgment will find an indispensable place on the desk, or at the bedside on the night before argument, of every successful appellate prosecutor. "

Authors for this book are some of the best-of-the-best teachers and authorities on how to be an effective appellate advocate. They were selected from across the country and include appellate prosecutors from attorney general’s and prosecutor’s offices as well as appellate judges and justices and a law professor. 

Here is what others have said about the book:

"I have been a prosecutor for 25 years, and have spent about half of that time handling writs and appeals. I thought I knew what I was doing, but in reading your book I found myself thinking many times, ‘Oh! So that's how I'm supposed to do it!’ Thanks again for publishing a great book!"

Michael D. Schwartz, Senior Deputy District Attorney, Writs, Appeals and Training Supervisor, Ventura, CA

"I have attended many appellate practice seminars. Few of those presentations were as helpful to the appellate litigator as those in this book, whose topics range from the obvious (persuasive brief writing and oral argument techniques) to the practical (books and online research resources, complete with website addresses) to the sublime (standards of review). . . . I will surely use it in my own civil appellate work and I heartily recommend it to all lawyers interested in improving theirs."

Annina Mitchell, Utah Solicitor General

CONTENTS OF THE BOOK

· Persuasion, Planning and Analysis for Appellate Advocacy – The building blocks of persuasion and how to use them in appellate advocacy.

· Writing the Persuasive Brief – How to effectively craft the three major sections of the brief.

· The Key to Good Legal Writing.

· A Sample Appellate Brief Template.

· Appellate Strategies – How to: find procedural and other bars; uncover flaws in Appellant’s brief; determine the real issue; enhance your credibility with the court and more.

· Research Resources: An Appellate Lawyer’s Tools of the Trade – Internet sites, prosecutor association information banks and written resources for appellate prosecutors.

· Standards of Review: The First Line of Defense.

· Protecting the Record for Appeal: Advice to the Trial Prosecutor.

· Professional Responsibility on Appeal – How to respond to ethical dilemmas that confront appellate prosecutors.

· Prosecutor Appeals - Eight considerations that may influence your decision to appeal.

· Successful Appellate Oral Advocacy.

· Appellate Court Conferencing of Cases – How appellate courts

conference and how that can effect your advocacy.

· Answering the Difficult Questions from the Bench.

· Inspirational Words for the Appellate Advocate.

An example of the contents of the Appellate Prosecutor is the chapter written by Justice Paul Anderson of the Minnesota Supreme Court. In his chapter, Justice Anderson states:

“Appellate judges enjoy asking questions. It is our lifeblood. It is how we seek to understand a case, eliminate ambiguity, and test a proposed rule of law. We do not purposely think up difficult questions to put appellate advocates on the spot. Nevertheless, many of our questions are difficult to answer because we are testing or probing in an effort to solve complex legal problems. 

“Most good appellate advocates welcome difficult questions because they know that this is how they can engage in a dialogue with the court. They know that it is only through such a dialogue that they and the court can act together to explore the nuances of complex legal issues. But not all appellate advocates appreciate difficult questions; many view them as a necessary burden. Why is there this difference? Generally speaking, it can be characterized as a difference in attitude, anticipation, expectation and preparation. By using the foregoing attributes properly, an advocate is able to significantly change the dynamics of oral argument so that even the most difficult questions are welcome or at least palatable. Fortunately, some principles and practices enable an advocate to successfully field the difficult questions. What follows are a few of these principles.”

Justice Anderson’s principles, insights and points include:

•                Entering the Dialogue: The Gift; Listen and Respond to the Question Asked and The Courteous Conversationalist

•                Preparation and Anticipation: How the Court Prepares and How the Court Views Your Case - The Three Categories

•                Answering Particular Types of Questions: The Premature Question; The Softball Question; The Stupid Question; The Nasty Hypothetical Question and Opposing Counsel's Questions

•                A Final Word About Preparation

Book Review of The Appellate Prosecutor

 

I was delighted to read a review of The Appellate Prosecutor in last month's issue of The Journal of Appellate Practice and Process (Vol. 22 No. 2 Summer 2022). The article entitled "Something Reinforced, Something New: A Review of The Appellate Prosecutor" was written by Tessa L. Dysart, Assistant Director of Legal Writing and Clinical Professor of Law, University of Arizona, College of Law.
Professor Tessa's observes:

"I have been teaching appellate advocacy for over a decade. Yet, when I pick up a book or article on the topic, I often find that I still learn something new in the reading. And, even if I learn nothing new, per se, in the reading, I find important concepts re-solidified, new ways to approach important topics, things I disagree with, and a reminder that practices and customs do vary by jurisdiction. The Appellate Prosecutor both taught me something new and reinforced familiar, but important, concepts. It is a book I recommend to any appellate attorney but especially one that represents the government in criminal appellate matters.

"The Appellate Prosecutor is an anthology of essays on appellate practice, with a special emphasis on attorneys who represent the state on appeal in criminal law matters. Although this emphasis is pronounced in certain chapters, I think that most appellate attorneys, even defense-oriented appellate attorneys, will find something of value in the book. The chapters run the gamut of appellate practice, from protecting the record at trial to brief writing to oral advocacy to even how judges conference cases. The individual chapters were written by state appellate judges and state appellate prosecutors, and the volume was edited by Ronald H. Clark, a longtime state court prosecutor and Distinguished Practitioner in Residence at Seattle University School of Law. . ."

The full article can be read here.  The Appellate Prosecutor book can be purchased here.

CARDINAL RULES OF BRIEF WRITING

In a book I edited, entitled The Appellate Prosecutor: A Practical and Inspirational Guide to Appellate Advocacy, J. Frederic Voros, Jr., who when the book was published was the Chief of the Appeals Division of the Utah Attorney General’s Office, contributed a chapter—“Writing the Brief.” Mr. Voros’s chapter focuses on how to write an appellate brief. Here is a favorite excerpt from his chapter, which is valuable for any advocate whether are a prosecutor, criminal defense counsel or have a civil practice.

An appellate brief should be brief. It should also be clear and accurate. These qualities are not the end; the end is of course to persuade the court. But they are the means, and they are a necessary means. They are the ABC’s of briefing: be accurate, be brief, and be clear. No brief will persuade that violates these cardinal rules.

THE C ARDIAL RULES OF BRIEF - WRITING

Firs t C a r d i n a l Ru l e : B e A c c u r a t e

An appellate brief must be scrupulously accurate. When a factual assertion is followed by a citation to a page in the record—and each one should be—that page, fairly read, must support the assertion. Likewise, when a case is cited in support of a legal assertion, the case, fairly read must support the assertion. Statements of what a case means or holds must withstand a fair reading of the case. To cheat in citing to the record or to legal authority is both wrong and foolish: wrong because it is an attempt to deceive the court, foolish because any inaccuracy in the brief will be discovered either by opposing counsel or by a law clerk. Neither prospect is a happy one. If opposing counsel discovers the inaccuracy, she has an additional weapon to attack your argument and, inferentially, your credibility.

If a judge’s law clerk discovers the inaccuracy, you may never know it, but the judge will. Most clerks begin life assuming that attorneys are thorough and conscientious, and are deeply impressed with evidence to the contrary. When they find it, they will feel they have found a pearl of great price that must be shared with their judge, or even included in a written opinion. You do not want your professional legacy to include this kind of reference: “In presenting this issue, defendant has not accurately represented the trial court’s decision.”

Most crucial from the point of view of advocacy, an attorney who fails to be candid with the court will also fail to persuade the court. Of course, inaccuracy may result from sloppy as well as sharp practice. Unfortunately, from the judge’s vantage point, the two are often indistinguishable.

Ensuring accurate citation is not difficult; all that is required is a thorough cite-check. The cite check should at minimum confirm or correct every record cite; confirm or correct every legal cite, including pin cites; and update all cited cases. Ideally, these tasks should be performed by someone other than the brief-writer; we all tend to miss our own lapses.

Second Cardinal Rule: Be Brief

A short brief is a favor to your reader. Judges are required to read a huge volume of written material. Part of this is our fault. Most briefs are written in haste, and, as a consequence, they are far longer than necessary. When we file a bloated brief, we cast upon the judges the burden of doing the final edit mentally as they read, and they like to edit our writing even less than we do. On the other hand, when we edit our briefs before filing them, judges appreciate it. Our editing makes their lives easier. Good editing is good advocacy.

There is truth in the German proverb, “Loquacity and lying are cousins.” Generally, the more straight-forward the argument, the fewer words needed to make it. You need few words to say that the law and the facts are on your side. You need many to explain why a statute or case that seems to doom your argument really does not. Therefore, all else being equal, length and strength are inversely related. Judges know this, and it makes them suspicious of long briefs. For example, the California Supreme Court once stated that they were “inclined to doubt the correctness of the ruling of the court below, on account of the extreme length of the brief of the learned counsel for respondent in its support.” “Knowing the abilities of counsel,” the court continued, “and their accurate knowledge of the law,  a brief of 85 pages, coming from them   in support of a single ruling of the court below, casts great doubt upon such ruling.” The court’s pique was thinly veiled: “However, the learned counsel may not have had time to prepare a short brief, and for that reason have cast upon us the unnecessary labor of reading and extracting therefrom the points made. If we overlook any of them, counsel will readily understand the reason.”

Not only do shorter briefs look more persuasive, they are more persuasive. Usually, long briefs are long because they waste words. They digress or repeat or argue uncontested matters or make their point circuitously rather than linearly. They are difficult to follow, and their salient points are often lost in a clutter of words.

Therefore, after you finish writing, start cutting. Strike interesting but sidelight arguments. Strike empty fillers such as “Clearly,” “The State asserts that” and “It is apparent that.” In addition to adding needless bulk, these expressions convey tentativeness rather than confidence. Unless dates are critical, such as where defendant asserts a statute of limitations claim, include only one or two. Also, follow Mark Twain’s advice: “When you catch an adjective, kill it.” The same is true of adverbs. Nouns and verbs are strong; make them do the heavy lifting. Scrutinize long footnotes: irrelevancies lurk there. Shorten sentences and paragraphs. Tighten up.

Third Cardinal Rule: Be Clear

Clarity precedes persuasion. A judge who does not understand your argument cannot be persuaded by it. Oliver Wendell Holmes wrote, “I would not give a fig for the simplicity this side of complexity, but I would give my life for the simplicity on the other side of complexity.” We are responsible for wringing simplicity from the complexity of the appellate record. The court is “not a depository into which the parties dump the burden of research and analysis.” We must sift through and present the relevant material in logical order. Your brief is sufficiently clear if an intelligent lay person can comprehend it in one reading. Keep it simple.

But how? For starters, put your main point up front. Do not bury it in the middle of a paragraph or in a parenthetical following a case citation. “Judges are not like pigs, hunting for truffles buried in briefs.” Do not hide the ball or unravel your argument gradually. You are not writing a suspense novel. A reader who knows your point up front can assimilate what follows, because he has a general framework into which to fit the detail. The opposite is not true: a reader faced with a mass of detail will understand none of it, because it lacks shape. Your readers should never have to wonder why you are telling them something. Transparency, not subtlety, is your goal.

If you enjoyed this excerpt, please consider getting The Appellate Prosecutor.

PALSGRAF AND IMPROVING YOUR LEGAL WRITING.

In a book I edited, entitled The Appellate Prosecutor: APractical and Inspirational Guide to Appellate Advocacy, the Honorable Paul Turner, who when the book was published was Presiding Justice of the California Court of Appeals Second Appellate District of Los Angeles, California, contributed a chapter. Judge Turner’s chapter focuses on the art of writing, specifically on crafting the short declarative sentence, which he referred to as “The Key to Good Legal Writing.”

Here is an excerpt from Judge Turner’s chapter:

The most important way to improve your legal writing is to develop the skill of writing the short declarative sentence. Some people do not need to use short declarative sentences. In 1995, the Houston Chronicle reported that Alan Greenspan, the Chair of the Federal Reserve Board, said, “I spend a substantial amount of my time endeavoring to fend off questions and worry terribly that I might end up being too clear.” In 1992, the Wall Street Journal reported that one wag suggested that Alan Greenspan’s tombstone should read, “I am guardedly optimistic about the next world but remain cognizant of the downside risk.”

But as an appellate advocate, your job is to be clear; not to be uncertain like Mr. Greenspan. Your task is to develop the skill of writing the short declarative sentence so that words march promptly in proper order towards a logical conclusion. That statement of your mission warrants repeating. Your task is to develop the skill of writing the short declarative sentence so that words march promptly in proper order towards a logical conclusion.

Here is an example of this important way of communicating, and it is from the famous case of Palsgraf v. Long Island Railroad Company 248 N.Y.339, 340–341 (1928). It is the first paragraph of Chief Judge Benjamin Cardozo’s famous opinion. In law school, professors use the Palsgraf opinion to discuss proximate cause and negligence. More importantly, it is the example of great legal writing utilizing the short declarative sentence as a way to communicate. Here, with minor bracketed interruptions, is the first paragraph of Palsgraf:

“Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway Beach. [Stop reading now. How many words were the in the first sentence? 18. Now keep reading.] A train stopped at the station, bound for another place. Two men ran forward to catch it. [Stop reading again—how many words in this sentence that describes the hurried conduct of two different human beings in relation to a train leaving a station? Seven words—that is all; now start reading again.] One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform many feet away. The scales struck the plaintiff, causing injuries for which she sues.”

The longest sentence in this first paragraph of Palsgraf is 27 words, the one that begins, “A guard on the car...” That sentence consists of a series of short phrases strung together. Look at them: “A guard on the car, [5 words and a comma] who had held the door open, [6 words and a comma] reached forward to help him in, [another 6 words and a comma] and another guard on the platform pushed him from behind” [10 words and a period].

The most important thing about this whole passage is a reader knows exactly, yes, exactly what happened. This accident happened on August 24, 1924, at the East New York Station in Brooklyn and everybody who reads the first paragraph of Palsgraf knows what happened 80 years later. That is communication, that is the power of the written word.

For the remainder of Judge Turner’s chapter and more on effective appellate advocacy, consider acquiring The Appellate Prosecutor: A Practical and Inspirational Guide toAppellate Advocacy. And by the way, it’s not just for prosecutors who are appellate advocates.

THE PERSUASIVE LAWYER

The Appellate Prosecutor: A Practical and Inspirational Guide to Appellate Advocacy is a book for appellate advocates. However, its nuts and bolts coverage of how to be persuasive is valuable for any attorney who will write a brief or argue before the bench. Its pointers on brief writing and argument are invaluable.

Judge Charles Moylan, thirty-year veteran of the appellate bench and renowned lecturer put it this way:

"This work in my judgment will find an indispensable place on the desk, or at the bedside on the night before argument, of every successful appellate prosecutor. "

Authors for this book are some of the best-of-the-best teachers and authorities on how to be an effective appellate advocate. They were selected from across the country and include appellate prosecutors from attorney general’s and prosecutor’s offices as well as appellate judges and justices and a law professor.

Here is what others have said about the book:

"I have been a prosecutor for 25 years, and have spent about half of that time handling writs and appeals. I thought I knew what I was doing, but in reading your book I found myself thinking many times, ‘Oh! So that's how I'm supposed to do it!’ Thanks again for publishing a great book!"
Michael D. Schwartz, Senior Deputy District Attorney
Writs, Appeals and Training Supervisor, Ventura, CA

"I have attended many appellate practice seminars. Few of those presentations were as helpful to the appellate litigator as those in this book, whose topics range from the obvious (persuasive brief writing and oral argument techniques) to the practical (books and online research resources, complete with website addresses) to the sublime (standards of review). . . . I will surely use it in my own civil appellate work and I heartily recommend it to all lawyers interested in improving theirs."
Annina Mitchell, Utah Solicitor General

CONTENTS OF THE BOOK

· Persuasion, Planning and Analysis for Appellate Advocacy – The building blocks of persuasion and how to use them in appellate advocacy.
· Writing the Persuasive Brief – How to effectively craft the three major sections of the brief.
· The Key to Good Legal Writing.
· A Sample Appellate Brief Template.
· Appellate Strategies – How to: find procedural and other bars; uncover flaws in Appellant’s brief; determine the real issue; enhance your credibility with the court and more.
· Research Resources: An Appellate Lawyer’s Tools of the Trade – Internet sites, prosecutor association information banks and written resources for appellate prosecutors.
· Standards of Review: The First Line of Defense.
· Protecting the Record for Appeal: Advice to the Trial Prosecutor.
· Professional Responsibility on Appeal – How to respond to ethical dilemmas that confront appellate prosecutors.
· Prosecutor Appeals - Eight considerations that may influence your decision to appeal.
· Successful Appellate Oral Advocacy.
· Appellate Court Conferencing of Cases – How appellate courts
conference and how that can effect your advocacy.
· Answering the Difficult Questions from the Bench.
· Inspirational Words for the Appellate Advocate.

An example of the contents of The Appellate Prosecutor is the chapter written by Justice Paul Anderson of the Minnesota Supreme Court. In his chapter, Justice Anderson states:

“Appellate judges enjoy asking questions. It is our lifeblood. It is how we seek to understand a case, eliminate ambiguity, and test a proposed rule of law. We do not purposely think up difficult questions to put appellate advocates on the spot. Nevertheless, many of our questions are difficult to answer because we are testing or probing in an effort to solve complex legal problems. 

“Most good appellate advocates welcome difficult questions because they know that this is how they can engage in a dialogue with the court. They know that it is only through such a dialogue that they and the court can act together to explore the nuances of complex legal issues. But not all appellate advocates appreciate difficult questions; many view them as a necessary burden. Why is there this difference? Generally speaking, it can be characterized as a difference in attitude, anticipation, expectation and preparation. By using the foregoing attributes properly, an advocate is able to significantly change the dynamics of oral argument so that even the most difficult questions are welcome or at least palatable. Fortunately, some principles and practices enable an advocate to successfully field the difficult questions. What follows are a few of these principles.”

Justice Anderson’s principles, insights and points include: 

·                Entering the Dialogue: The Gift; Listen and Respond to the Question Asked and The Courteous Conversationalist

·                Preparation and Anticipation: How the Court Prepares and How the Court Views Your Case - The Three Categories

·                Answering Particular Types of Questions: The Premature Question; The Softball Question; The Stupid Question; The Nasty Hypothetical Question and Opposing Counsel's Questions

·                A Final Word About Preparation

Read Justice Anderson’s entire chapter here. If you find that chapter valuable, consider acquiring The Appellate Prosecutor book.