Appellate Practice Section Newsletter
Ten Tips from the Other Side of
the Appellate Bench
by John J. Bursch
Prior to entering private practice, I spent one year clerking for the Honorable James B. Loken on the United States Court of Appeals for the Eighth Circuit. Through countless discussions in chambers and on our triweekly 7-mile runs, Judge Loken shared his considerable experience from private practice at a large Minneapolis law firm and seven years on the Eighth Circuit bench. Here are ten practical tips for appellate practice that I extrapolated from our conversations. These points are of general applicability, but they are specifically aimed at those attorneys who have limited experience in the court of appeals:
1. Limit the Number of Appellate Issues
One of the first appeal briefs I reviewed for the Judge involved a criminal conviction and sentencing. Defendants’ counsel raised a laundry list of appeal issues, twelve in all. My initial reaction was that a meticulous job had been done on the brief. Judge Loken’s initial reaction was exactly the opposite: “Trial judges are smart, competent individuals. They make mistakes from time to time, but they will never make twelve of them in a single trial or hearing. Too many attorneys make the kitchen-sink mistake; they include every possible appellate argument, even the ones that lack merit. As a practical matter, I rarely see anything meaningful raised after the third or fourth claimed error.”
Forget the kitchen sink arguments. There is a one-in-a million chance that issue number six will carry the day, and by raising it on appeal, you severely damage both your credibility and likelihood for success on the issues that may actually be winnable. Except in the extraordinary case, try to limit the number of errors you claim to three or four. Just as importantly, do not save the “good stuff” for the end of the brief. An appellate brief is not a novel, which should conclude with a surprise, for dramatic effect. Your strongest and best points should appear first and be given the most space.
If you are feeling particularly bold, limit your appellate argument to the single issue that gives you the greatest chance to win. This is a risky approach, and you may need to have several discussions with the client to secure approval. But the court will appreciate your focus, and it gives you the greatest chance of getting the court’s attention in the midst of its sea of appellate briefs.
2. Be Meticulous in your “Record” Keeping
It is a common myth that appellate judges do not have time to read and consider the factual record on appeal. In Judge Loken’s chambers, nothing could be further from the truth. The Judge insisted that in each draft opinion, citations to the record had to support each and every factual recitation, even though the citations would be deleted for the final, published opinion. He then went to the record itself and verified that the support existed. Unsurprisingly, then, an appellate brief that accurately and consistently cites to the record for every fact will endear you to the court.
Just as importantly, do not exaggerate what the record says. You will be caught. Appellate judges and clerks are not easily fooled, and your credibility will evaporate the first time they discover that you “shaded” a witness’s testimony to appear more favorable to your position, or conveniently substituted ellipses for an unfavorable statement. Once that discovery is made, any presumption of accuracy in the brief will be lost, and every single page of the record will be reviewed to see what other creative liberties have been taken. It should go without saying that such scrutiny is not worth the risk.
3. Do Not Go Outside the Record
This point is closely related to the previous one. Long before you file a notice of appeal, consider what trial court evidence is essential to your case and make sure it is in the record that goes up on appeal. For example, in a McDonnell-Douglas employment discrimination case, the firing letter and the reasons for the firing had better appear in the record! Judge Loken suggested that a catalogue be kept of important documents, with an index that notes where a given document can be found in the record, and specifying how the document was admitted.
If, in desperation, you are considering the inclusion on appeal of a non-record document, rethink that strategy. At best, the appellate panel will simply ignore the evidence and you will lose credibility; at worst, your opponent will move to strike your brief, and you will have to spend time and the client’s money to re-file a brief that limits itself to record evidence. Avoid the problem altogether by thinking about the record from the day the Complaint and Answer are filed.
4. Tell a Compelling Story
Appellate practice is not solely about law and policy. Facts are still important. You want an appellate panel to feel compelled to “right a wrong,” just as you hope a jury will do the same. As Judge Loken asked, “How does a claim ‘feel’ without the legal analysis?”
Unfortunately, there is no easy formula to getting this right. One approach would be to view more movies, attend theater, and read novels. In doing so, look for trends in thematic material and how it is presented, than find analogies for your own cases. Once you have focused on a theme, try it out on other lawyers, your spouse, and your six-year-old. If the story rings true for them, there is a good chance it will for the court as well.
5. Non-binding Caselaw is Just That - Nonbinding
There is a tendency to defer to facially well-reasoned decisions handed down in other jurisdictions, particularly where the decision has been validated by a number of subsequent opinions in still other jurisdictions. Do not fall into that trap. A non-binding decision may, or may not, be outcome determinative in your case; that is what makes it “non-binding.”
This lesson was apparent in a complex civil case in which Judge Loken was on the panel. One of the main legal issues in dispute had been previously addressed by a federal court in another circuit. The prior court’s opinion read well, and it had been followed by several other courts. Both of our parties assumed the prior opinion was good law, and treated it as such. Accordingly, they limited themselves to arguing over whether the facts in our case were similar or distinguishable from the other case. Judge Loken’s opinion (correctly) followed an approach that neither party had taken. The opinion challenged the precedent head on and concluded it was wrong. Most surprising, this need for the Judge to “re-litigate” the case in chambers, to make up for a lapse by counsel, happened in several of our cases.
Do not force the court to be your client’s best advocate. Look for creative opportunities to persuade, even when that means disagreeing with the result in other cases, particularly those in foreign jurisdictions.
6. Read the Whole Case
In the first opinion that I drafted during my clerkship, Judge Loken sent me back to re-research the case I cited for the standard of review. The case accurately stated the standard. But the Judge observed that in the cited case, summary judgment was reversed, whereas his decision affirmed. The Judge emphasized that in each of his opinions, the precedent cited should reach the same outcome as the opinion itself. Moreover, the precedent cited should involve the same subject matter addressed by the opinion, if possible. These rules applied to every case cited in the opinion, even something as basic as the standard of review.
This rule also applies to appellate briefs. You are asking the court to rule a certain way. The last thing you want to do is offer up a case in which the court ruled a different way, regardless of how well that court sets forth your rule of law (although in extreme cases, it may be unavoidable). In addition, by carefully citing only to cases that reach the same result for which you are advocating, you avoid the embarrassment of seeing your cases turned against you in your opponent’s brief: “Smith v. Jones, one of the cases cited by appellant, rejects the very result that appellant now advances.” Read every case carefully, and watch what you cite.
7. Be Concise
Appellate judges, like trial court judges, suffer from overloaded dockets and a lack of time. The last thing they want is to be bogged down reading over-length briefs that never reach “critical” points of the argument.
Judge Loken read every page of every brief prior to an oral argument. He even wrote his own bench memos. But his preparation and questions were focused on the 1-5 cases that were most important to resolving the most difficult issue. Follow the same focused approach when deciding how to whittle down that 100-page draft appellate brief. The court will appreciate every effort at achieving brevity, clarity, and grace in your brief writing.
8. Prepare for “Odd” Hypotheticals
It is always important to remember the effect that an appellate decision has on other cases. In addition to binding lower courts facing disputes with facts like your case, the holding and reasoning will be used (and manipulated) by attorneys in many other types of cases, sometimes in ways that are not immediately apparent.
Judge Loken tried to anticipate future problems by carefully considering before oral argument the ways a certain decision might affect other fact iterations and areas of the law. In fact, one of his strengths was reasoning by analogy to (facially) unrelated substantive areas. As a result, attorneys were often confronted with “odd” hypotheticals — questions that on the surface appeared to have little to do with the case in controversy, but that had much broader implications.
The only way to prepare for such questions is to spend some time conjuring up your own odd hypotheticals. Use common sense. For example, ask how practical your rule of law will be in the real-life business world. How might your reasoning be applied in other cases? What if all the facts except “X” remained the same, and “X” changed to “Y”? Even if you fail to anticipate the precise question that the panel asks, simply having gone through the mental gymnastics beforehand will help you better understand the strengths and weaknesses in your case, placing you in the best possible position to respond with a compelling answer.
9. Answer the Questions You Are Asked
This rule may seem obvious, but I saw it violated so many times at oral argument that it bears repeating. Oral argument is not the time to impress the panel with advocacy skills or even with your commanding knowledge of the law and factual record. It is the time to win your case. Again, Judge Loken: “Oral argument is the one chance you have to get inside the panel’s head, to see what the judges are thinking or to address the things that concern them. Listen carefully to the questions they ask, and then answer them!”
There are several lessons to be gleaned here. Do not evade questions from the bench. Do not give the court a line of bunk. Do not put the court’s question off until later in your presentation because you think there is another, more important point that has to be made first. The most important point is the one that answers the question you have just been asked.
10. Know When to Sit Down
If you are lucky enough to be an appellee at counsel’s table while opposing counsel is being skewered by a panel that clearly understand the facts and applicable law, do not feel compelled to stand up and make an argument at all. Following an argument where counsel failed to heed that advice and then paid for it, Judge Loken remarked: “When things are going well, do not take the risk of triggering a question from the bench that will unravel your case. Before you know it, you will have snatched defeat from the jaws of victory.”
This is equally true of issues that the appellant does not address in oral argument. If the appellant wants to leave an issue to the briefs, then so should the appellee. The presumption is that the appellant will address at argument those parts of the case that need the most attention. Unless the forgotten issue is absolutely critical to your case, and you are sure you can answer all the questions you will be asked, let it go. And when victory is at hand, forget your prepared remarks and simply offer the panel an opportunity to ask any remaining questions it might have. Then sit down.
Litigation is often compared to chess. In both arenas, you must anticipate your opponent’s moves and strategize to defeat them. As Judge Loken liked to point out, however, litigation is also very unlike chess, because the pieces can be unexpectedly “reset” in the middle of play when a new piece of evidence is discovered or when a new legal argument is introduced.
The appellate process is a good time to step back, reevaluate, and determine if the pieces on your board have been reset (or should be). As many of Judge Loken’s “tips” suggest, that means stripping everything down to the one or two fundamental points on which you plan to make your case, wrapping them up in a compelling story, and supporting everything with an established record. And while there is no magic formula to winning an appeal, remember that placing yourself in the shoes of the panel throughout the appellate process will best position you and your client for an appellate victory.
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John J. Bursch is an attorney at Warner Norcross & Judd LLP, where he specializes in appellate, commercial and condemnation litigation. He is Chair of the firm’s Appellate Practice Group and serves as the D.C., Circuit editor for the American Bar Association’s Appellate Practice Journal . Mr. Bursch is a summa cum laude graduate of Western Michigan University and a magna cum laude graduate of the University of Minnesota Law School.