In a typical trial court proceeding, an attorney has months if not years to build credibility with the judge before a final judgment is rendered, and often does so through multiple briefings and personal appearances. On appeal, however, credibility is gained or lost based almost entirely on the parties’ appellate briefs on the merits. By way of example, in the U.S. Court of Appeals for the Ninth Circuit — which is the largest federal appellate circuit in the United States, both in terms of the number of cases filed and number of judgeships — more than 8,000 appeals were decided on the merits in 2012. According to the Administrative Office of the U.S. Courts, more than 75 percent of these cases were decided on the briefs alone, without oral argument. Even before the California Court of Appeal, where oral argument is a matter of right, the panel will almost always reach a tentative decision before oral argument, and the outcome is rarely altered by oral argument.
The following four tips will help ensure that your brief builds credibility and trust with the appellate judges (and with their supporting staff of law clerks and staff attorneys) so that your client’s position is viewed as favorably as possible.
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