Florida Bar Journal

Feng Shui Your Appeal: Create the Energy to Succeed

Feng shui literally means “wind” and “water” in Chinese.^[1] It is the ancient practice of arranging space to promote a harmonious flow of chi, or energy.^[2] Feng shui philosophy suggests that we live in an invisible field of energy.^[3] Arranging your home or office according to the laws of feng shui allows this energy to flow freely, promoting well-being, peace of mind, and success in business.^[4] Perhaps surprisingly, applying certain feng shui principles to the appellate process may help create the energy needed to win an appeal. This article outlines some suggestions for lawyers to improve the energy flow of the appellate process and, thus, improve the chances of winning an appeal.

Step One: Taking the Appeal

An attorney must invest time and energy as a lawyer in determining whether to proceed with each appeal. Careful consideration should be paid as to whether an appeal should be taken at all. Taking a frivolous appeal may result in sanctions against counsel or a claim by the client for unnecessary fees or costs. Costs, including payment to the court reporter for preparation of the transcript of the trial or hearings, payment to the clerk for the preparation of the record, and the cost of a bond to supersede the judgment, must also be considered. Even more significantly, the client will have to pay his or her own appellate lawyer’s fee, and potentially the other party’s appellate lawyer’s fee.

• Getting Paid — It is important to have a solid and clear written fee agreement to avoid any misunderstandings with the client. Whether taking the appeal on a guaranteed fee basis or a contingency fee basis, prompt evaluation must be given to the case to ascertain the validity of the appeal. Before accepting a contingency fee appeal, it is critical to delineate and articulate the specific issues that have a good chance for success on appeal. Otherwise, a significant amount of time, money, and energy will be lost — in other words, bad feng shui. Taking the right steps and making the right decisions can prevent such a negative situation. Even if a fee is guaranteed, bringing an appeal without a clear idea of the issues is a mistake. Such a situation may culminate in a brief filled with borderline frivolous issues to justify the fact the filing of an appeal and collection of a fee. Meanwhile, the unhappy client has invested much time and money in a losing effort. In deciding whether to bring the appeal, consider the fact that chances of success may be greater as the appellee.

With a statutory or contractual right to attorneys’ fees on appeal, act promptly and properly to preserve that right. A party can lose the right to recover attorneys’ fees from the other party by failing to timely and adequately file a motion for fees. For example, Fla. R. App. P. 9.400(b) requires that a motion for fees be served no later than the time for service of the reply brief, and that it state the grounds on which recovery is sought.^[5] A motion to assess appellate costs in the lower tribunal must be filed within 45 days after the mandate issues.^[6]

• Select the Right Lawyer for the Appeal — Think about hiring an appellate specialist. Trial practice and appellate practice require different skill sets that a single lawyer is unlikely to possess. While a good trial lawyer must have the ability to persuasively present facts to a jury, a competent appellate advocate must combine skillful legal analysis with skillful written advocacy in order to persuade a panel of appellate judges. While a trial lawyer may be excellent at relating to the emotions of jurors, the trial lawyer may view the matter through the lens of appellate counsel. In addition, because of a schedule full of client meetings, depositions, hearings and trials, trial counsel may also lack the time needed to review the record, research the law, and draft the briefs.

Moreover, an appellate lawyer can bring an independent and objective perspective to the appeal. Appellate counsel can even be brought in early in the case to assist the trial lawyer with matters such as preservation of error and presentation of complex legal issues to the trial court.^[7] Alternatively, an appellate specialist can be retained immediately after judgment to deal with post-trial matters and have early involvement in the appeal process.^[8]

Step Two: Get the Record Straight

Ensuring that the appellate record is proper and accurate is one of the most important steps in creating a smooth and fluid appellate process. If the record is incomplete or inaccurate, there may be bumps in the road that can throw the court off track. Preparation allows momentum and a flow of positive energy, providing a better chance to win.

• Feng Shui Your Appellate Record by Directing the Clerk — The appellant can streamline the record on appeal by filing directions to the clerk within 10 days of the filing of the appeal, according to Rule 9.200.^[9] If no directions to the clerk are filed, the clerk will prepare the “default” record described in Rule 9.200(a)(1), which may include thousands of pages of documents, many of which are not relevant. What this means is that the record will be unnecessarily cumbersome, resulting in a tremendous waste of resources. Additionally, finding and citing to the relevant documents in the record will be more difficult and time consuming. Without providing directions to the clerk, there is simply a great deal of wasted resources and energy — in effect, bad feng shui.

On the other hand, when the clerk is directed to include only the documents that are needed, the index to the record and the record itself are smaller, more manageable, less costly, and reduce waste of resources — all promoting a good flow of energy and good feng shui. As an added benefit, by creating the record on appeal soon after the notice of appeal is filed, the lawyer is forced promptly to examine and clarify the issues involved in the appeal, leading to a more focused, directed, streamlined appeal.

• Designation to the Court Reporter — Under Rule 9.200(b)(1), the appellant must designate within 10 days of filing the notice of appeal those portions of the proceedings not on file deemed necessary for transcription and inclusion in the record. In other words, if a transcript of a hearing or trial is needed for the appeal, the appellant must immediately take control of this process, coordinate with the court reporter, and make financial arrangements for the preparation. That will ensure the continued flow of the energy of the appeal. The transcripts likely will be prepared when you need them for review and preparation of the brief. On the other hand, failure to properly and timely send your designations to the reporter will hamper the free flow of energy in the appellate process.

Step Three: Reduce Stress and Negative Energy Through Preparation

Read the relevant rules of appellate procedure early on in the appeal, especially those related to the type of appeal involved. At the beginning of the appeal, calendar all deadlines, such as the time frames for filing the directions to the clerk and the designation to the court reporter, the time for preparation of the transcript by the court reporter, the preparation of the index to the record on appeal by the clerk, and the time for filing your briefs. There are some excellent methods for reducing stress and creating a better flow of energy during the appellate process. For example, if anticipating procuring a 30-day extension of time in addition to the 70 days provided for the filing of a brief in a final appeal, then the initial brief will be due 100 days after the filing of the notice of appeal. Do not wait until a week or two before the brief is due to start preparations. Instead, calendar multiple stages of internal deadlines from the time the notice of appeal is filed for the completion of various tasks. A sample schedule for an appellant (including court-imposed deadlines and internal deadlines) might look like this:

Day 0, notice of appeal due.

Day 10, directions to clerk and designation to reporter due.

Day 15, begin thorough review of record documents.

Day 20, begin research of law regarding known issues.

Day 30, begin review of trial transcripts (if available).

Day 50, index to record to be completed by clerk.

Day 50, complete review and outline of trial transcripts.

Day 50, continue research of law.

Day 60, outline arguments for brief and start drafting brief.

Day 70, complete first draft of brief.

Day 75, complete second draft of brief.

Day 80, complete third draft of brief.

Day 85, have third draft of brief reviewed by others.

Day 95, complete final revisions to brief.

Day 100, file brief.

Strict compliance with internal deadlines is not critical. However, scheduling them will allow control and direction over the pace of the appellate process. Following the internal schedule will, thus, promote confidence in completion, given that the major external court-imposed deadlines, like filing the brief, will be met with the least amount of stress. The work product will be improved, augmenting the chances of a successful appeal.

Also, contacting opposing counsel early and asking in advance for consent to an extension of time that may be needed can alleviate stress. Rule 9.300(a) requires that a motion for an extension of time contain a certificate that the movant’s counsel has consulted opposing counsel and that is authorized to represent that opposing counsel either has no objection or will promptly file objections.^[10] An early conferral avoids the stress of trying to procure such an agreement at the last moment when the brief is due.

Step Four: Writing the Brief

• You Are Your Brief — In feng shui, symbolically our homes and offices are reflections of our inner self.^[11] Similarly, appeals and specifically briefs reflect who we are as individuals and lawyers. A sloppy brief reveals sloppy thinking and lack of care, while a meticulous brief demonstrates thoughtfulness, order, and engenders credibility. Such qualities help pave your way for success.

• Citations to the Record Must Be Accurate — Cite to the record on appeal with complete accuracy. Every sentence in the statement of the case and of the facts should contain a citation to the record on appeal. Not only is this the better practice, but Rule 9.210(b)(3) specifically requires “[r]eferences to the appropriate pages of the record or transcript.” In fact, complete and proper citations to the record for all statements lends credibility to your brief, your position, and your presentation at oral argument.^[12] This credibility creates a very positive energy field, in which the court is likely to be more open to consider the legal positions in your appeal. Conversely, if your brief misstates (or even worse, misrepresents) the record on appeal, your chances of prevailing are drastically reduced.

• Make the Story Interesting and Readable — Combine and consolidate the testimony of the witnesses, weaving the facts into an interesting, readable story. This will allow a much better flow of energy for the reader than a chronological listing of each witness and his or her testimony. Use descriptive terms (i.e., the bank, the broker, the employer), rather than “appellant” or “plaintiff,” when referring to the parties. The label you ascribe to a party may have a valuable psychological effect and at least makes the story flow better.

• Know Your Standard of Review — Selecting the appropriate standard of review will set the stage and create the proper energy needed for the appeal to flow freely. The standard of review controls the level of scrutiny the appellate court will apply in reviewing the judgment on appeal.^[13] The standard of review will dictate, to a large degree, an appeal’s chances of success. For example, an abuse of discretion standard is used to review discretionary decisions of the trial court.^[14] That standard is very deferential to the trial court and limits the ability of the appellate court to reverse a ruling. Such a standard of review would, for example, apply to a trial court’s determination of the relevance or admissibility of evidence.^[15] A de novo standard of review, on the other hand, is used to review questions of law and is the most coveted standard for appellants in the appellate process.^[16] Reversal is more likely when an issue is reviewed under a de novo standard. There are also other standards that apply to various situations. Using the correct standard of review will help guide the court to the correct conclusion.

• Use a Rifle, Not a Shotgun, to Select the Issues on Appeal — Issue selection is one of the most critical issues in the entire appellate process. Many lawyers include every possible legal issue when writing a brief. This is a mistake. Use a rifle, not a shotgun approach to selecting the issues in a brief. Just as feng shui promotes a focused approach toward a free flow of energy, so should a brief focus the energy of your arguments. Focus the court’s energy on the best issue or issues that are most likely to be successful.

Generally, you are best served by selecting the top one or two arguments to present to the court. As the Seventh Circuit explained in Pierce v. Visteon Corp., 791 F.3d 782, 788 (7th Cir. 2015), “[t]o brief more than three or four issues not only diverts the judges’ attention but also means that none of the issues will be addressed in the necessary depth.” Present the arguments in the order of their strength. It is the job of the appellate lawyer, not the appellate court, to decide which issues are the strongest and the most likely to win.

On the other hand, the shotgun approach will hamper chances for success. A lawyer using the shotgun approach includes multiple and excessive issues in the appeal. Some of these issues may be strong and some may be weak. The energy of the appeal is, thus, scattered and unfocused, just as a single pellet from a shotgun contains less energy than a bullet from a rifle, dissipating the strength of any single argument. Not only does the lawyer waste energy focusing on these weaker arguments, but more importantly, the court may be distracted from the potential winning arguments by such a scattered approach.^[17] Precious attention of the judges in reading the briefs and precious minutes of oral argument can be lost while the court is mired in inconsequential issues.

• Frame the Issues Like You Would Frame a Masterpiece — Framing the issues on appeal is one of the critical elements of successful appellate practice. To get the right answer, you must ask the right question. If the court accepts the way you frame the issue, then the result will likely be in your favor. The issue should be framed in a manner that suggests the desired answer. Take great care in properly framing the issues.

• Think Clearly and Write Clearly — Clarity is essential. Write in plain English.^[18] Imprecision in word selection and writing may have extreme consequences.^[19] Avoid verbal confusion and extraneous materials. For example, if the dates of filing of documents are not relevant, omit them. If an appellate judge reads a date in a brief, the natural tendency is to think that it may be relevant. State a date only if it is important to the context or has significance under the rules or caselaw. Clogging up a brief with irrelevant dates or other facts hinders the flow of energy in the brief.

Vigorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts. This requires not that the writer make all his sentences short, or that he avoid all detail and treat his subjects only in outline, but that every word tell.^[20]

Use active voice, not passive voice when writing. In the active voice, the subject of the sentence acts: “The plaintiff filed a complaint.” When using the passive voice, the subject of the sentence is acted upon: “A complaint was filed by the plaintiff.” Put the subject and verb together. Using the active voice will make writing stronger, easier to read, and more persuasive.

Write. Rewrite. Rewrite and rewrite again. As Louis Brandies stated: “There’s no such thing as good writing — there’s only good rewriting.”^[21] It is up to the lawyer to present the brief in a manner that is understandable, logical, forceful, precise, persuasive, and easy to read. The energy of the brief must flow freely and positively.

Not many lawyers can prepare such a brief in one draft. So you must be willing to prepare multiple drafts of brief, each one better than its predecessor. Because it is not always possible to be objective with your own work, it is very useful to have other people read your drafts. If possible, have at least two others involved in this process: first, a lawyer who is not familiar with the issues in your case; second, an intelligent layperson. Their two perspectives should go a long way in helping you determine whether the critical elements are present in your writing and in your brief.

Another powerful tool to keep the energy flowing in a brief is to use transitory connections in writing. Each sentence should flow in a logical sequence to the next sentence. Each paragraph should flow in a logical, connected manner with the next. Help the reader understand this flow of logic by using phrases that explain the connection to the reader. For example, such phrases may include: “Another example,” “In addition,” “The next issue,” “Conversely,” and “In other words.” Also, section headings can guide the reader through the facts and argument. Writing well allows conclusions to flow with apparent ease from analysis of the facts and law.

Step Five: Feng Shui Your Oral Argument

The twin elements of effective appellate advocacy require an excellent argument as well as an outstanding brief. Although the outcome of many cases may be controlled by the briefing alone, oral argument is a critical part of an appeal. Generally, if an appeal is worth taking, it is worth asking to argue. In a close case, this is your opportunity to persuade the court in your favor. If you have a chance to present oral argument, make sure you take advantage of that opportunity to persuade the court. Even if an oral argument does not change the result of the decision, it may result in a better reasoned opinion. To be persuasive, an oral argument — like a brief — must be well organized and well presented.

• Preparation is Key; Outline Your Oral Argument — After reviewing the briefs and the caselaw, prepare an outline of the most important arguments that support your position on appeal. This outline should be no longer than a page or two and can serve as a mental crutch should you need it during oral argument. List the facts and legal authorities that support the main arguments. Note any record citations to critical disputed facts. Having such an outline will make you feel more comfortable during oral argument, thus, facilitating a positive flow of energy. In addition to your outline, you can bring copies of the briefs and key cases to the podium for reference if necessary.

Preparing an introductory statement and a concluding statement in advance may help your confidence and augment the flow of presentation. However, flexibility is power. Sometimes oral arguments proceed in an unexpected manner. Full consideration and deep thinking about the issues in your case are a must. If you are an appellee, flexibility may be even more important, as you may not accurately predict the issues upon which the appellant intends to focus.

• Presentation of Oral Argument — Understand the time limitations and use them wisely. Oral argument may be limited to 10 or 20 minutes. Make sure you know the precise time limitations in advance and plan accordingly. Because some of the limited time may be taken up by the questions or comments from the court, prepare to make your critical points in less than the time allotted. That will allow a much better flow of energy than trying to rush through your points after a judge has asked a question or taken up time with a matter upon which you did not want to focus. If you are an appellant, reserve time for rebuttal.

Carefully select the points to discuss with the court. Time limitations will not allow you to review all the arguments in your brief. Make only your best argument and no more than two or three points. Do not read your oral argument. Not only might this bore the court, but it hampers your ability to create a positive rapport that can promote the best atmosphere for persuasion.

Put yourself in the place of the judges on the panel and consider what might be important to them. Learn about the members of the court to whom you will present your argument. In some courts you will know the specific members of the panel in advance. Although the appellate courts work to be objective, the judges are human and each one has a set of beliefs and judgments that may affect his or her decisions. Pay special notice to controlling or persuasive decisions authored by the panel members regarding the issues in your case.

Seek to create a dialogue with the court. Answer any questions from the panel directly and with honesty. Avoiding a question or saying that you will get to it later causes a negative energy during the argument. If a judge asks a question, it is obviously important to that judge. If you are presented with a choice of making a concession or losing credibility, keep your credibility. You will need that currency to persuade the court on other critical matters. Also, if you do not know the answer to a question, admit that you do not know. Guessing will just get you in trouble by diminishing your credibility or locking yourself into an untenable position.

Some lawyers may fear questions from the panel and may consider them an interruption to their “planned” presentation during oral argument. The principles of feng shui, however, would reject such an attitude. Rather, feng shui suggests that the appellate advocate should embrace any question or comment from the panel because such an “interruption” is really a tremendous opportunity to discover what is truly important to the judge or what specific problems he or she has with your position. The response to the inquiry must be used as a springboard to launch into the reasons and explanations why your position is correct. With such an attitude, the lawyer will be prepared to get to the heart of the issue as perceived by the judges — the audience that you seek to persuade. This is truly using energy to promote your cause.
Speak clearly and loud enough for the court to hear you. Do not only tell the court the right result. Explain why it is the right result. Explain why the cases you rely on were decided correctly. Tell the court the principles that support a victory for your client.

Practice your oral argument presentation out loud in front of colleagues or intelligent non-lawyers. If no one is available, practice in front of a mirror or videotape your presentation for review. Serious practice will make you more comfortable when you are before the court. Time your presentation so you get the feel of how long it takes to properly present your argument.

Step Six: Avoid or Limit Motions for Rehearing

Use motions for rehearing sparingly. The courts and the rules of appellate procedure do not favor them. As the court explained in Lawyers Title Ins. Corp. v. Reitzes, 631 So. 2d 1100, 1100-01 (Fla. 4th DCA 1993): “Despite all that has been written to discourage the abuse of motion practice, motions for rehearing continue to occupy a singular status of abuse in our court system.”^[22] Do not seek reconsideration on issues the court legitimately has considered just because the ruling is not in your favor. If your rehearing motion is nothing more than an attempt to reargue the issues, skip it. Such motions rarely accomplish anything more than testing the patience of the court. Generally, they are ineffective and waste time, money, and judicial resources. Simply put, they are bad feng shui.

Conclusion: Create Your Success

Arranging the appellate process according to the principles of feng shui may help create the energy to win. By following these guidelines, an appellate attorney may be more prepared, comfortable, confident, and relaxed. Work will flow better and move forward effortlessly. The clarity of thoughts will improve. You will write better. Your powers of persuasion will increase. Your advocacy skills will shine. Creating a harmonious environment surrounding your appeal will move you forward to success.

This column is submitted on behalf of the Appellate Practice Section, Carrie Ann Wozniak, chair, and Heather Kolinsky, editor.