Moskovitz On Appeal: Advanced Insights From An Advocate Who Wins
by Myron Moskovitz
The life of the law has not been logic; it has been experience….” This oft-repeated statement of legendary jurist Oliver Wendell Homes, Jr., who served as associate justice of the U.S. Supreme Court for 30 years, could well be applied to Moskovitz’s relatively short primer on “how-to” tips for handling appeals.
The book consists of 308 pages; however, approximately half is made up of seven samples of the author’s briefs and petitions — with each sample prefaced by a short narrative explaining the rationale supportive of his argument. Actual text covers about 120 pages and offers advice gleaned from over 40 years of experience as an appellate attorney.
Moskovitz represents that has handled or consulted on hundreds of appeals in state and federal courts and claims that, “When representing appellants, he has obtained reversals in over 70 [percent] of his cases while the average reversal rate is below 20 [percent].”
Against the backdrop, Moskovitz sets out, in seven parts (How to Win, Should I Appeal?, Preparing to Write the Brief, Writing the Brief, Oral Argument, You Lost Now What, and Obtaining Writ Review of a Non-Appealable Trial Court Order) and 25 chapters, his take on how to win appeals.
The chapters are short; of the 25, 17 are from one to four pages in length. Only four are in double-digits: Myron’s “Rules” (12 pages, setting out his three themes noted below), The Statement of the Facts (12 pages), The Argument (21 pages) and What to do at Oral Argument (10 pages). The number of pages correspond to the importance the author places on the appellate process.
This is not a law book on appellate practice and procedure. The author cites cases sparingly, and only when he is emphasizing a strategic point. Rather, it is a neatly and breezily written, easily understandable, common-sense nuts and bolts approach to appellate practice that emphasizes the importance of persuading judges that your argument does justice (however this may be defined).
Three themes dominate Moskovitz’s book. First, consider how the appellate judges see the case. Second, proceed strategically, focusing every aspect of your effort to persuade the court in your favor. And third, be creative in your writings to the court.
The author emphasizes meticulousness in undertaking the appeal, from conducting an in-depth analysis of the record to preparing a working outline to writing the brief to preparing for oral argument — in such a precise and persuasive way as to convince the court of the correctness of your position.
For the new or beginning appellate practitioner, Moskovitz offers sound advice. For the experienced advocate, his book serves as a constant reminder of analytical points to consider when taking an appeal. In passing, what he offers as advice also applies to all aspects of advocacy, whether it be in a memorandum of law, a speaking motion, or at a hearing. After all, the advocate’s job is to persuade.
Having handled or consulted on hundreds of appeals, I found much of what he presented to be rather elementary, but recalling Justice Holmes’ reference to experience, what may be elementary now was not the case when I first began practicing law. One should never be too “experienced” to be reminded of what good appellate advocacy is. Moskovitz’s book provides important strategic advice to the novice and a handy reminder to the experienced practitioner.
George Waas is a member of The Florida Bar.