Florida Bar News

The Art of the Appeal

Special to the News

In the first part of this series, we discussed the most effective strategies and tactics for choosing an appellate lawyer and crafting an impactful statement of facts. In Part II, I discuss the most important factors to appellate lawyers when crafting your argument.

Find the Right Path
Somewhere in the trial record is the single best path to appellate victory. The drafter’s first task is to find the path. The appellant’s lawyer should keep in mind that no judge wants to be a rubber stamp. It is the opportunities to reverse that make the job interesting. Most appellate judges will respect the presumption of correctness of the trial judgment, but they will look for the opportunities to reverse. The job of the appellant’s lawyer is to convince them that this is the case in which to do so.

The appellee’s lawyer should remember that the path to appellate victory is not always the same path that led to victory at the trial level. The stated basis for the judgment might not be the best path to victory, and the law holds that the judgment is to be affirmed if the trial court was correct, even if it was for the wrong reasons. It is neither necessary nor wise for appellee’s lawyer to attempt to defend bad reasoning.

Sometimes, there are two or more theories of substantially equal strength, and it makes sense to include all of them. However, a shotgun approach in which multiple theories of varying levels of strength are briefed should be avoided for two reasons. First, the weaker arguments will weaken the entire brief whether they go first or last. Since lawyers typically place their strongest arguments first, judges will assume that any arguments that follow will not be stronger. It’s a bad first impression. On the other hand, including weaker arguments at the end will leave a weak closing impression. Second, including a weaker argument in the brief can cause problems in oral argument. Most appellate benches include judges who will seize on the weakest argument in the brief with which to challenge the lawyer. The lawyer may get tangled up in a lengthy argument with the judge, losing precious time. Most importantly, the lawyer will be arguing on his or her weakest instead of strongest ground. In any case, the judges are seeing the same facts and legal authorities as the lawyers. If you consider an argument weak, they probably will, too. If they aren’t persuaded by your stronger arguments, they won’t be persuaded by your weaker ones.

Stay Focused
Always remember the goal: Control the issues; fight the battle on your strongest ground. To accomplish that, you must keep the judges focused on your theory of appeal, and that requires that you keep yourself focused.

First, structure your argument so that it is always presented within the context of your theory, not the opposition’s theory. Never open the point by responding to the opposition’s argument. Discussion should begin with your theory (or in the reply brief, short reference to your theory) followed by argument as to why the opposition hasn’t effectively refuted the theory. The appellee’s answer brief and the appellant’s reply brief should be responsive to the opposition’s arguments, but never reactive. It is not necessary to follow the opposition’s terminology or sequence of points on appeal. Instead, the points should reflect your theory and should be ordered in the most logical sequence to advance your theory.

Nothing should be included that doesn’t serve to advance your theory and focus the judge’s attention on that theory. Anything that might cause the judge to digress from your theory is counterproductive. Avoid hyperbole and caustic comments about the opposing lawyer, for example. Neither strengthens your argument, and they can induce a negative reaction from the judge, which causes a loss of focus. Statements like, “The appellant’s argument makes absolutely no sense,” might be OK provided that the judge didn’t think it made sense when he or she read the argument. In that case, you have caused the judge to mentally ally with the opposition and to think about your bold assertion rather than your argument.

In recent years, I have seen increasing use of the word “disingenuous.” It is a fancy word that means lying. Although I have seen judges use the term, many judges would consider it unprofessional for a lawyer to use it to describe another lawyer’s argument and, again, it accomplishes nothing and isn’t worth the risk. It is far better to present the facts that illustrate the opposition’s lack of credibility and let the judge conclude that opposing counsel can’t be trusted.

Many briefs contain “speed bumps,” unnecessary segments that slow down the smooth flow of the argument. It isn’t necessary to tell an appellate court, along with string cites, that the judgment below comes to it with a presumption of correctness or that summary judgment should only be granted when there are no material issues of fact in dispute. Appellate opinions generally include such boilerplate, but they are written for an audience of lay persons and students as well as lawyers. There is only one audience for your brief that matters, and the appellate panel doesn’t need to be reminded of fundamental legal principles that the judges can recite in their sleep.

Keep It Simple
Occam’s razor can be paraphrased as “the simplest solution is usually the correct one.” Studies have shown that the proposition is a real factor in the human decision-making process. All else being substantially equal, most people believe that the simplest of multiple hypotheses is the correct one. I have read many briefs that take simple arguments and make them complicated, usually by embedding the essentials in a complex web of rhetoric. This is often the result of the manner in which lawyers approach the drafting task. In my experience, most lawyers follow the “kitchen sink” approach. They begin by unloading every thought they have on the appellate point onto paper with the idea that they will pare it down later. They then become so wedded to their prose that they cut only so much as necessary to get within the word or page limit.

I take the opposite approach. I begin by setting on paper just the core of my theories of appeal. I then build the argument from there, adding only so much as is necessary for support and clarity. Brevity serves more than simplicity. Appellate judges are busy, typically having to read 50 or more briefs in a week. They are not interested in being entertained by the beauty of your prose, and an argument does not become stronger because it’s longer. Judges want to be told what you want them to do, and why, as concisely as possible. A brief that is short and simple doesn’t have to be bland and boring. Properly constructed, a concise brief can be compelling and effective.

In the final part of this series, I will discuss how to be responsive to judges’ inquiries and remain focused while maintaining your appellate strategy during oral argument.

Barry Richard is a shareholder with Greenberg Traurig in Tallahassee, concentrating his practice in the fields of complex commercial litigation, constitutional law, and appellate law.