Appeals

Video Transcript

Appellate work has many similarities to trial work at the trial court level, obviously, but there are some significant differences. If you are the party appealing, you're the appellant. You must convince the court of appeals that the trial court or the jury, whoever decided the case and however it was decided, made an error so significant that there should be a reversal, something that needs to be changed. If you won below, which I've had more experience with, I'm happy to say, but no one has an unblemished record that way, then you want to convince the court of appeals that it was done correctly below, and nothing should be disturbed here. So that's the goal. You need to understand the standards for the kind of appeal you're pursuing and keep those standards in mind. I'm not going to go into that; it gets technical, and there's no need to do that here. But it's very important to keep that in mind when it comes to brief writing.

One wants to think through very clearly, after having studied the record below (and when I say below, I mean at trial, what happened), knowing the trial record cold. Then begin to formulate what are the issues that can be raised on appeal that have real meat to them, that have power and force, that are going to get the attention of the court of appeals and hopefully persuade them to reverse. Or if I'm representing the appellee, the party that won, there's nothing in this record that would support a reversal or disturbing in any way the decision that was made below. So that's what I'm trying to do. I'm studying the record; I know it cold. I think about what the issues are that are worth raising, and then I start writing the brief.

Of course, the brief has to be clear, succinct without being too brief, logical, persuasive, and completely supportive. There is no statement of law that's made that isn't supported by cases that really do mean what you say they mean. There are quotes from the record that are not cherry-picked or taken out of context; they really do fairly represent the point you're trying to draw out. So that when the clerks, the appellate clerks who study the record, look at the representations in the brief, they can say, "This brief is reliable, trustworthy, and deserves great weight, and it is persuasive."

When it comes to oral argument, I'm reminded of a dinner that I attended, sitting next to Justice Scalia. Somebody asked him about the importance of oral argument on appeal, and he said, "They're much more important than you think." What makes a great oral argument is a lawyer who has understood the case and the issue so well that he or she knows what's important and what to argue and what not to argue because it's peripheral, it doesn't matter, it's too weak. That lawyer understands the case and has a better chance of making points and changing minds or reinforcing viewpoints that are favorable already to that lawyer's position because he or she is not wasting time on peripheral things that don't matter, not yielding to insecurities that so many lawyers have - "I've got to raise everything." You shouldn't raise everything; you should raise the things that really matter, and you should understand the case that well that you really know what matters and what doesn't.

In oral argument, you must never be afraid of what we refer to as a hot bench - panel members, judges, or justices if we're talking about the Supreme Court who are peppering you with questions. That sounds intimidating; it sounds horrible, but it's a great opportunity. The judges are telling you what's bothering them, and you're getting a chance to change minds or reinforce a viewpoint that some of them already have that are favorable to you. Don't fear questions; seize them, be responsive to them, be clear, be succinct, answer them. Also, bear in mind that the time limits are excruciatingly short; most cases in the United States Supreme Court only allow 30 minutes to argue, and in most federal and state appellate courts, it's no more than 15 minutes. You have to be mindful of the time; that's why everything you say matters. Sometimes you have to be prepared for the worst kinds of surprises.

I was arguing a trademark appeal that we had won below, and we won it in the court of appeals as well. The first question that was asked by the first judge in the appellate court, someone I knew very well and liked a lot, his question made me realize in horror that he didn't understand the first thing about what a trademark was, and this was a trademark case. I said to myself in a flash, "My god, I've got maybe 5 minutes out of my 15, maybe 6 minutes at most, to try to tell him what a trademark is and how it relates to the case being argued that day." It all worked out, but the point is, you can't anticipate that something like that will happen. Things like that happen, so you have to be emotionally flexible, intellectually flexible, and you should structure your notes such that they're not in any way a script. Not at all; you can move from one point to another point to another point because you don't know what's coming at you. That's how I approach appeals.