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
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.
To be effective, the appellate lawyer should begin preparation for the argument several days or even weeks in advance of the scheduled argument. Allowing an extended period of time for preparation for argument allows the advocate to think about the case and the presentation best suited to it and to consider the questions he might ask if he were hearing the case for the first time, as is the case for the judges on the panel. It also allows for the avoidance of last minute panic as the day for argument draws near.
A good first step would be to reread the briefs, the opinion, if there is one, or decision of the court that decided the case and the cases cited in support of and against that decision. While thus familiarizing himself with the issues, the lawyer should be thinking of the most persuasive way to present his arguments. Not every issue needs to be emphasized, and giving more cognizance than necessary to an insignificant or peripheral issue can be a self-defeating exercise. Moreover, in preparing an appellate argument, counsel ought to discern how he will transition back into his main argument from his response to the court’s questions.
With his recollection refreshed as to the applicable law and the holding of the court below, counsel is then ready to review the record. Knowledge of the record is critical and counsel should be prepared to buttress any factual statement to the court in support of an argument with a record reference.
In searching the record for appellate issues, counsel would be well advised to be wary of unpreserved issues, especially in his review of the trial transcript. The failure to preserve an issue for appellate review will usually bar any remedial relief from the error on appeal. The requirement of issue preservation is based on sound judicial policy. As a general proposition, it assures the opposing party the opportunity to respond with admissible evidence and pertinent argument, thereby eliminating consideration of new fact issues or legal theories on appeal since, if an issue had been raised, proof might have been offered to refute or obviate it in the court of original jurisdiction.2 Furthermore, preservation of an issue helps promote an error-free trial by requiring the litigants to afford the court a timely opportunity to avoid or correct error in the conduct of the trial.3
Lawyers preparing for oral argument may also find it helpful to have an initial, detailed outline of each of the issues presented. The outline will likely be revised frequently, and shortened, during the preparation period as the lawyer’s thinking on the key points becomes more focused. With adequate preparation, the outline’s usefulness will be diminished as the lawyer eventually commits to memory the essential points of his argument. Even though the lawyer will come to rely on memory for the key points of his argument, the outline may still provide a sense of security and serve as a reference during argument. If reduced to a single page, in large type, the outline will also serve to insure that the lawyer, even in the face of strong questioning from a “hot” bench, covers every essential point in his argument.
Hit the Salient Point(s) Immediately. Given the extensive questioning that can be anticipated from the judges on a panel that is “hot,” a lawyer for the appellant should prepare an opening to take advantage of the relatively brief quiet period that precedes the judges’ questioning for the purpose of allowing counsel to introduce himself. Rather than a recitation of the facts or the procedural history of the case or of misstatements in the adversary’s brief, the opening should be a few sentences that immediately arrest the attention of the court as to why the reversal or modification sought is required. The opening should reflect the reason why the decision or order on appeal cannot stand and should be articulated in the simplest and most persuasive language. The lawyer for respondent should take the same approach.
If the court’s questioning of the appellant’s attorney during his presentation raises a serious question as to the court’s acceptance of his argument or has completely undermined the argument, a simple recognition of the court’s grasp and understanding of the issues, stated in a complimentary fashion, should suffice as the respondent’s argument, coupled with a brief statement as to why the case should be affirmed and perhaps a stated willingness by counsel for the respondent to respond to any questions the bench might have.
Address Adverse Precedent Squarely. In preparing for oral argument, counsel should be prepared to deal with precedents that are adverse to his client’s position. It goes without saying that he should never ignore these precedents. Ignoring them is never a solution; it will not make them go away. Advocacy of this kind is not only highly unprofessional,4 but may also constitute a violation of New York’s Rules of Professional Conduct.5 Counsel, of course, may attempt to distinguish the adverse precedent or even, if he argues in an appellate court that established the precedent and which, by virtue thereof, would have the power to overturn its own precedents, urge that it be overruled, but he may not ignore it.
It also behooves a lawyer preparing an appellate argument to take advantage of the opportunity to participate in a moot court. Probably no other method of preparation for oral argument is as valuable. It presents an opportunity for counsel to be questioned by lawyers who have read the briefs and are familiar with the case and the issues. Such an exercise will not only imbue him with confidence when confronted with questions at the actual argument but also allow him to make a smoother and more cohesive presentation of his case.
Know the Judges. Of course, it is also helpful to know the identity of the judges before whom you will argue. If your argument is before the Court of Appeals, absent a recusal, the seven judges of the court will sit. The Appellate Division has rotating benches. In the First Department, the names of the justices sitting on the panel are identified in the New York Law Journal on the day of the argument. However, their names can be obtained the day before by calling the clerk’s office after 3 p.m. or checking the court’s website. In the Second Department, the identity of the benches is published in the New York Law Journal approximately two to three weeks before the argument and on its website at the same time. In the Third Department, the names of the sitting justices can be obtained by calling the clerk’s office approximately 24 hours before argument, or checking online. In the Fourth Department the names are available on the morning of the scheduled argument.
Know the CPLR on a Brief’s Requirements. Although a lawyer should not encumber his oral argument with a lengthy statement of the facts, a strong statement of the facts is a critical component of any appellate brief. In fact, CPLR 5528(a)(3) requires that an appellant’s brief contain “a concise statement of the nature of the case and of the facts which should be known to determine the questions involved, with supporting references to papers in the appendix.”6 The importance of the statement of facts in an appellate brief cannot be understated. Legal precedents have no life of their own; they ride on the backs of the facts. Precedents are persuasive only if the facts supporting them are similar to those of the case at issue. As former Chief Judge Judith Kaye has noted:
I continue to believe that composing the fact statement requires the greatest skill. It is the brief writer’s first opportunity to relate the case to the judge, and is never neutral though it must appear scrupulously so. Each fact recited in a brief should advance the legal argument you plan to make; in its totality the fact statement should condition the reader to feel that justice is on your side. Even in a court of law like ours, no judge votes easily against the just result. Above all, your facts must be accurate, correctly portraying and citing the record.7
It bears noting that each and every factual assertion in the statement of facts should be followed by a citation of the place in the record where support for the statement can be found. In reciting the facts counsel must be unwaveringly fair. No less than counsel’s credibility, so important to the success of the argument, is at stake.
CPLR 5528(a)(2) requires that the appellant’s brief contain “a concise statement, not exceeding two pages, of the questions involved without names, dates, amounts or particulars, with each question numbered, set forth separately and followed immediately by the answer, if any, of the court from which the appeal is taken.” The questions should be stated clearly and framed in terms of the facts of the case on appeal without unnecessary detail. They should go to the core of the case with the purpose of leading the court to the answer the draftsman intends. The questions presented should be consistent with the required point headings that follow in the argument section of the brief, which should be in the same order as the questions presented and be affirmative statements in answer to each question presented.
CPLR 5528(a)(4) requires that the argument “be divided into points by appropriate headings distinctively printed.” Thoughtful draftsmanship is the key to fashioning point headings, which should weave the essential facts together with the governing legal principles. And, of course, in writing a brief, counsel should always begin with the strongest argument, lest the judge reading the brief, already unimpressed by the previous weaker arguments, comes to the conclusion that the entire case is meritless. Since the purpose of point headings is to provide a guide for the judges and not to guide the drafting lawyer through his argument, I have always been of the view that point headings are better left for selection after the argument is written and decided upon when the draftsman has a complete overview of the case.
An issue that often confronts the brief writer is an opposing brief replete with misstatements and inaccuracies of the record. These misstatements are best responded to together and not in discrete portions of the brief. That way, the opposition’s case is shown for what it is: a case lacking merit. It also has the advantage of disposing of all the inaccuracies together in the same discussion, rather than piecemeal.
After watching appellate lawyers practicing their craft for 30 years, I am left with the impression that the best appellate advocates are those who make their arguments in the simplest and clearest of language, who have the knack of getting to the heart of the matter quickly, who answer the judges’ questions promptly and directly and have a thorough knowledge of the record and who know not only when a point has been made but also when it has registered. Perhaps, though, their greatest asset is the credibility they bring to any case in which they appear.
Love Thyself Above All Others. In recounting my experiences as an appellate judge for 30 years, I am reminded not only of the attributes that I admired most in an appellate advocate but also those traits that I disliked. One of the more pronounced misjudgments made by counsel in arguing an appeal is becoming so carried away by his argument as to forget momentarily the venue in which he is arguing and to treat the appellate tribunal as though it were a jury sitting as the trier of the facts. Such an argument is easily recognized. It is long on emotion but short on the law and controlling precedent.
Reading May Be Fundamental—Reading Aloud Is Not. Another failing I have witnessed is the lawyer who reads his entire argument. Nothing will turn a court to total boredom quicker than the spectacle of a lawyer, gazing down at his brief or prepared notes, intently parroting its words in a dull, lifeless monotone, without pause or passion. Most of the times that I sat on a bench hearing such an argument, the judges had no questions of the lawyer, which I always construed as a total failure of argument. Part and parcel of any appellate argument should be the lawyer’s effort to convince the court of the rectitude of his cause by the ardor and zeal of his argument, an element totally lacking in an argument consisting solely of a reading of the brief. That is not to say that a lawyer should rely on memory rather than reading an important quote from a case, especially where accuracy is essential.
Anything but the Facts, Please. Similarly, despite the repeated reminders by the justice presiding to the assembled lawyers at the calendar call that they could be confident that the bench is familiar with the facts and issues presented by each of the cases on the calendar, appellate lawyers will sometimes insist on a lengthy recitation of the facts as though the bench is a stranger to the case. Using valuable argument time on such an exercise is wasteful. Of course, if a reading of a portion of the testimony or record is crucial for emphasis or clarification or to resolve a hotly contested issue, doing so is quite appropriate.
Respect of Our Home Leads to Respect of Yours. As anyone familiar with an appellate calendar knows, judicial time spent on the bench is a precious commodity. For that reason, appellate courts attempt to keep meticulous control of their calendar time. Often, on the call of the calendar, lawyers are beseeched to yield some of their argument time, given the judges’ familiarity with the facts and the issues of each case and the length of the calendar. In the First Department, the justice presiding will also explain that the light on the podium facing the lawyer as he argues will light up two minutes before his argument is to conclude as a warning and will be followed by a red light signaling the expiration of the lawyer’s time for argument. Most lawyers will, if needed to conclude their argument, ask the court’s indulgence for an additional minute or two to wrap up their argument. The request is invariably granted. My pet peeve was always with the lawyer, never a neophyte, who, talking through the red light without so much as a “by your leave,” would continue his argument and thereby challenge the justice presiding to cut him off. I always found it hard to accept such a display of bad manners, and, when presiding, like others of my colleagues, would not tolerate it.
Please Do Not String the Court Along. Finally, I have never understood the apparently incurable habit of endless string citing, especially with respect to the well accepted legal principle as to the propriety of which there could be no challenge.
Needless to say, much of what I have written here reflects just a plain application of common sense. Still, I harbor the hope that these thoughts and suggestions prove helpful.
1. In preparing this article, the author is indebted to the treatise, New York Appellate Practice, (Lexis Nexis Matthew Bender), A. Vincent Buzard, Author, Thomas R. Newman, Original Author, for its invaluable insight.
2. Matter of Gonzalez v. State Liq. Auth., 30 N.Y.2d 108 (1972).
3. People v. James, 81 A.D.2d 22 (1981).
4. See In Matter of Department of Education v. Brust, 2009 NY Oath Lexis 334.
5. See 22 NYCRR Part 1200. Rule 3.3(a)(2) states: “A lawyer shall not knowingly fail to disclose to the tribunal controlling legal authority known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.’ Comment 4 to Rule 3.3 states, in part: “[L]egal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. Paragraph (a)(2) requires an advocate to disclose directly adverse and controlling legal authority that is known to the lawyer and that has not been disclosed by the opposing party.”
6. “[A] counterstatement of the nature and facts of the case shall be included only if the respondent disagrees with the statement of the appellant.” (CPLR 5528[b].)
7. New York Appellate Practice, supra, p. 7-24, citing (NYSBA 1995).