Appellate advocacy is an art, not shared by every lawyer solely as a result of legal training or even practical legal experience, especially if that experience is confined to an extensive trial background. Effective appellate advocacy is a specialty, the key to which, as in every aspect of the law, is thorough preparation.1
Five Ways to Impress
Prepare. Preparation for oral argument varies with the complexity of the case. Even though oral argument may, in accordance with court rules, be limited to only 15 or 20 minutes, the appellate lawyer must take into account not only the time it will take to make his argument but also the time it will take to answer the questions the members of the panel will ask. To a large extent, the ability to respond forthrightly and persuasively is the key to success in appellate advocacy. In preparing for oral argument, counsel must take into account that most appellate benches in the New York state system are “hot” benches, meaning the members of the panel will have read the briefs before the argument and are presumably familiar with the record. Thus, the judges do not have to be educated by counsel as to the facts and issues in the case.
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