Below are some personal thoughts on appellate advocacy that I have learned from my 15 years on the Appellate Division, First Department bench.
• Believe it or not, some appellate lawyers are so eager, they don’t bother to introduce themselves to the court. So, always say, "Good afternoon, my name is Sam Jones, from the firm of ABC, appearing on behalf of appellant X." But, don’t schmaltz it up. None of this: "I have the honor and privilege of appearing for appellant X." And, never, never ask appellant X to stand while you introduce her to the assemblage, something you might do at the outset of a trial. And, while on this point, if you happen to invite your client and the client’s immediate family to view your formidable advocacy skills, be mindful of not "playing" to that invisible jury. Appellate judges don’t like that. They are the jurors.
• Develop a short summary in the form of a theme for your argument. An argument should tell a story, a compelling story. Legal cases are stories which often contain the elements of compelling drama even while they may appear ordinary. Formulate a sentence or two to start out with that presents the human heart of your client’s legal position. It has to be brief, so you don’t appear to be arguing the facts rather than the law. But, appellate judges hear hundreds of cases; putting a human face on a legal argument may help them focus on your case as a unique matter.
Rather than presenting just another sidewalk defect case, yours could be the one where a standard that cannot be satisfied is being applied to the property owner. Rather than a typical Labor Law 240 case, yours could be about the general contractor who took every safety precaution and yet was unable to prevent the plaintiff’s accident.
• Dress conservatively. For men, no sport jackets; wear a suit. Don’t loosen the top button of your shirt and let your tie hang down. For women, and I have checked with my women colleagues on this, wear appropriately conservative and non-revealing (their words, not mine!) clothing, a suit, perhaps.
• If you are a respondent and the appellant doesn’t show up for argument either because the appellant considers the case a slam dunk (unlikely) or a loser (more likely), think about forgoing oral argument, especially if the justice presiding ("JP") asks, "Do you really need argument time at all?" You may be snatching defeat from the jaws of victory by exposing the one weak aspect of your appeal, and every matter usually has one.
• There are usually a few cases (often First Department cases) that were relied upon by the motion or trial court in its decision and that are germane to the appeal. Know them cold, and if the case is against your position be prepared to distinguish it with specific reference to the facts of your case. If the precedent seems to close you in on all sides, be prepared to (respectfully) urge the bench not to follow the prior ruling, but you better have some good reasons ready to advance.
We do revisit prior doctrine, but appellate counsel needs to be prepared and thoughtful in order to persuade us that such a bold move is in order. After all, appellate judges are essentially incrementalists and prefer distinguishing a prior precedent (even endlessly) rather than simply sweeping it away.
• Don’t read from notes or a script. It looks bad, and the judges probably won’t allow it anyway.
• Don’t lay your watch on the lectern next to you. We often take that to mean you are checking up on the accuracy of our timekeeping. In any event, the well-timed argument you may have delivered to your spouse at home will most probably not go off in the quiet, uninterrupted manner it did at home.
• Don’t devote endless pages of your brief to the law of summary judgment. One or two paragraphs is enough.
• Don’t string cite.
• If you cite a case in your brief, no matter for what point, be prepared to be able to discuss it.
• Understand and apply the rules of burden of proof as it pertains to your appeal. If your opponent has the burden of proof, remind the bench of that fact and, of course, tell them why the burden has not been met. Conversely, if you have the burden of proof, don’t be afraid to alert the bench and advise them of all the cogent factual reasons you have met that burden and the fact that your opponent hasn’t controverted it.
• The ability to field questions during oral argument is a vitally important skill for an appellate advocate. Here are some points that come to mind:
a) Never cut off the questioning judge, as tempted as you might be to jump in with an answer. Take a deep breath and let the judge finish.
b) Welcome questions from the bench. Questions mean the judges are awake, alive and involved. As an appellant, if you face a silent bench, you have probably lost.
c) If you can’t answer a question because, for example, it pertains to information in the record that you can’t locate just then, or if you just don’t know the answer, don’t spend precious time leafing through the record or worse yet, guessing on an answer. Instead, suggest that after argument you will search the record and provide a written response. Keep your argument moving forward.
• If a particular judge evidences hostility to your position and, worse yet, takes up an inordinate amount of time, when the red light goes on, don’t be afraid to ask the Justice Presiding for a few more minutes to articulate your position. Try: "Your Honor, as you can see, I have utilized a good amount of my time in an interesting exchange with Judge X concerning questions she raised. I would appreciate it if you would allot me a few more minutes so that I can complete some thoughts I didn’t have an opportunity to raise." I can’t say this will always be effective, but a JP sensing you may have been roughed up a bit may be receptive.
• And, let’s say you are representing a criminal defendant on appeal and a member of the panel says: "And, counselor, isn’t the error you rely on unpreserved?" Obviously not a friendly question and frankly one that could be called "unfriendly." But there is even an answer to that: "Absolutely, unpreserved, Your Honor. But, if you will hear me out, I think you will see that this is a case that cries out for the court to utilize its interest of justice jurisdiction."
• And just because a judge asks you a question, don’t assume it’s unfriendly or hostile. Sometimes, just sometimes, judges ask "softball" questions to help the attorney convince the rest of the panel. Be on the lookout for these "softballs" and if you get one, use it to your advantage.
• If you don’t understand a judge’s question, ask for a clarification.
• If one judge asks you a question and before you can complete an answer another judge shoots you another question totally unrelated to the first, look to the justice presiding for direction. It may not be a good idea to get into the cross fire of two judges.
• If a judge has asked you a particularly probing question and you have answered it, don’t be afraid to ask the judge if your answer is satisfactory. By the way, this is probably the only time it’s ok to ask a judge a question.
• If you have the time and the means to videotape your preparation, do so. You may learn a lot about how you appear to a group of judges. It would be ideal if some of that video preparation included some questions thrown at you by friends or colleagues.
• I read the reply brief first and work backward. The reply brief shouldn’t be a regurgitation of the brief-in-chief. It should be a finely-honed piece of writing dissecting the respondent’s points and reasserting the principal points of the brief-in-chief. As a respondent, anticipate this and proceed accordingly. Perhaps you might want to conclude, "Appellant, who gets the last word, will probably tell you (the following). But, that cannot be the case for the following reasons:"
• Finally, in most cases, oral argument probably doesn’t matter that much. But, in those close cases, it may very well be the difference between winning and losing.
David B. Saxe is an associate justice on the Appellate Division, First Department.