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December 15, 2017
The Art of the Appeal

By Barry Richard
Special to the News

The fifth century BC military strategist Sun Tzu, in his classic treatise The Art of War, taught that the army that controls the field of battle will have a significant strategic and tactical advantage. Twenty-six centuries later, the treatise is still studied by military leaders and has lessons for appellate lawyers as well.

Barry Richard In appellate litigation, the field of battle consists of factual and legal issues, and the side that more effectively controls the issues will have a significant, often decisive, advantage. Many factors can influence the outcome of an appeal — the degree to which the facts and law favor one party, the legal intelligence and oratorical skills of the lawyers, the predisposition of the judges, and material changes in the law since entry of the judgment — but the appellate lawyer has little control over these factors. The facts and law are constrained by the trial record. The relative skill of the lawyers and the predisposition of the judges is unlikely to change radically after the judgment is entered, and it is rare that a material change in the law occurs during the pendency of an appeal. The one factor the appellate lawyer retains complete control over is the manner of presentation of the factual and legal issues to the court. The most nuanced differences in that presentation can mean the margin of victory or defeat.

Part one of this three-part article discusses the most effective strategies and tactics for choosing an appellate lawyer and crafting an impactful statement of facts. Part two discusses how to identify the best path to victory and how to structure your argument accordingly. Finally, part three focuses on strategies for oral argument.

Selection of an Appellate Lawyer
The first strategic decision is for the client: Which lawyer should handle the appeal? I once received a telephone call from the general counsel for a corporation that had been granted certiorari by the U.S. Supreme Court. I assumed he was calling to ask me to handle the appeal, but he was actually planning to handle it himself and wanted me to coach him, despite the fact that he had never before argued an appeal. I was not surprised because no lawyer wants to pass up the opportunity to quarterback in the Super Bowl of the law. That is probably the reason that former Chief Justice Warren Burger complained about the poor quality of representation before the High Court.

There is a vast difference in the skills required at the trial and appellate levels. The lawyer who agrees to handle an appeal without sufficient training and experience at the appellate level does a serious disservice to the client. Sophisticated clients know better than to hire an inexperienced lawyer for an appeal, but are often conflicted as to whether to use the lawyer who tried the case, but who also has significant appellate experience, or to engage an appellate lawyer who was not involved at the trial level. There are valid arguments for both options, but I believe the latter is the better course.

A lawyer who tried the case may be wedded to the strategies deployed below and prejudiced by his or her experiences in the course of the trial. An appellate lawyer who is new to the case carries none of this baggage. He or she is able to view the record as the appellate judges will view it, and better envision the best path to victory. Assuming that the client has selected an appellate lawyer who is new to the case, it makes sense for that lawyer to confer with the trial lawyers, but only after thoroughly reviewing the record and legal authorities and developing an initial appellate strategy. Conferring with the trial lawyers first risks losing the advantage of objectivity.

I am often asked whether it is advantageous to engage a lawyer who regularly practices before the court that will hear the appeal. I have argued hundreds of appeals in federal and state courts from coast to coast, and I have opposed lawyers from throughout the country appearing for the first time in my local jurisdiction. This experience has led me to the conviction that whatever small advantage may exist for the local lawyer is outweighed by the lawyer’s skill. There was a time early in my career when appellate lawyers rarely ventured beyond their local jurisdiction, and the appearance of an out-of-state lawyer was a noticeable curiosity. Over the past two decades, multi-state appellate practice has become commonplace and the quality and neutrality of appellate benches has measurably improved. The result is that appellate judges, with rare exceptions, just don’t care where the lawyers are from. A lawyer who has earned a good reputation with his or her local court may enjoy an initial advantage in that court over an unknown opponent. However, that advantage dissipates as soon as the appellate judges read a high-quality brief from the visiting lawyer.

The Appellant’s Statement of the Facts
In February 1941, Winston Churchill broadcast a speech that was designed to convince the U.S. Congress to support the Lend Lease program, by which the United States eventually sent over $31 billion in armaments and supplies to England. The speech, considered one of the most persuasive in history, is credited with giving substantial impetus to the act by which Congress adopted the program a month after the speech. One of the remarkable aspects of the speech is that it is largely a recitation of facts. It is not until the very end, when Churchill penned his famous line, “give us the tools and we will finish the job,” that he overtly editorializes.

Quote The most persuasive arguments begin with a compelling recitation of facts that leads the listener to reach his or her own conclusions favorable to the speaker’s viewpoint. By the time a judge finishes reading an appellant’s statement of the facts, the judge should at least be receptive to the idea of reversal. Ideally, he or she will want to reverse at that point, so that the argument section of the brief can be devoted to providing the legal means to do so.

The two most frequently committed sins of fact statements is that they contain too much information, and they are boring. An effective statement of the facts is not an exhaustive summary of the evidence in the record. It is a carefully tailored recitation of facts relevant to the party’s theory of the appeal. I am not suggesting that the statement should omit record evidence directly adverse to the facts stated. That evidence will almost surely be presented by the appellee and the failure of the appellant to mention it will cause the appellant’s lawyer to lose credibility with the judges. However, it is unnecessary and strategically unwise to include facts unrelated to the appellant’s theory of appeal just because the opposing party introduced them at the trial level. A judge reading the appellant’s statement of the facts for the first time will naturally assume that all facts included are important to understanding the appellant’s argument. Extraneous facts divert the judge’s attention from the issues the appellant is trying to establish and are counterproductive to the goal of controlling the legal battlefield.

The statement of the facts must be objective and must not include argument. Nevertheless, it should hold the judge’s attention and persuade the judge at least to be open to reversal. How do you accomplish this balancing act? Tell a story. I once heard a sociologist state that we are a story-telling species, and it immediately occurred to me that speakers who begin with a story are the most effective at capturing their audience’s attention. We have been telling stories since the earliest humans drew pictures on cave walls, and every child’s first intellectual engagement with grownups is by hearing stories. We are hard-wired to pay attention. Every appeal tells a story. The key to an effective statement of the facts is to tell the story well.

Consider the following two statements of the same factual record:

The parties entered into a contract whereby the defendant agreed to produce components for the plaintiff’s widgets in accordance with specifications supplied by the plaintiff. The defendant failed to comply with the specifications. As a result, defective widgets caused purchasers to suffer injuries and deaths resulting in the failure of plaintiff’s business.

Now consider this alternate telling of the same factual circumstances:

On July 12, 2012, Joseph Martin left his 15-year position as an IBM executive, gave up his retirement benefits, and mortgaged his home to pursue his dream of developing and selling a revolutionary new medical device. Because he knew that the life and death of purchasers and the survival of his business would depend upon the quality of his product, he was careful to do business only with suppliers that had established the highest reputation for product safety and quality.

Mr. Martin became convinced that the defendant met his high standards upon reading the company’s heavy promotion of its many awards of excellence. Mr. Martin would soon discover that the awards were ill-deserved when the defendant delivered products that were negligently manufactured and that failed entirely to comply with Mr. Martin’s specifications. The result: thousands of persons were injured, 17 persons died, and Joseph Martin’s business was destroyed.

The first is a recitation of facts. The second is a story.

When you finish drafting your statement of the facts, ask a nonlawyer to read it without revealing which side you represent. Then ask the person to tell you the story and the lesson taken from it. If person is unable to accurately repeat the basic facts or not disposed in your client’s favor, rewrite the statement.

It has become fashionable in recent years for appellants to include an introduction prior to the statement of the facts. With one exception, it is not helpful and can be counter-productive. The introduction is usually a truncated sampling of the statement of facts and summary of argument that follow it. The result is that the statement and summary are repetitive, thereby inviting loss of the judges’ interest. The one exception occurs in the occasional case in which the reader must first have some understanding of the theory of the appeal in order for the statement of the facts to have impact.

The Appellee’s Statement of the Facts
The appellee has fewer options than the appellant because the appellee’s strategy for the statement depends upon the appellant’s statement. Even so, appellee’s counsel should be guided by the goal of controlling the legal battlefield. If the appellant presents a thorough and fairly balanced statement, the appellee should accept the statement and move on. A complete restatement will tax the judges’ patience and appear manipulative. However, the appellant’s statement almost always requires some response. It usually omits facts that are important to the appellee’s theory of appeal, and it frequently is designed to support a theory completely at odds with appellee’s. In some cases, the appellant’s statement is so poorly drafted that it fails to provide the court with a reasonable understanding of what the case is about.

When the appellant’s statement omits or misstates important facts, but is otherwise acceptable, the appellee should add or correct those facts and nothing more. By so limiting the response, the appellee focuses the judges on the facts supporting the appellee’s theory of appeal. It is important to give the bench advance notice of why the appellee is not simply accepting the appellant’s statement. The appellee’s statement should be titled, “Correction of Facts” and should begin: “The following material facts were omitted or misstated in the appellant’s Statement of the Facts,” or similar language. When the counsel determines that it is necessary to present a complete restatement, the title should be “Restatement of the Facts” and should be begin with an explanation of why a complete restatement is deemed necessary.

Drafting a compelling statement of facts can be one of the most effective tools in your arsenal when crafting an appellate brief.

In the next part of this series, I will discuss effective strategies and key goals to keep in mind when structuring your 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.

[Revised: 12-17-2017]