Winning Appeals Through Strategic Thinking
The Bencher—March/April 2019
By Myron Moskovitz, Esquire
Trial attorneys create their own record, by choosing what evidence to introduce, what questions to ask on cross, and what arguments to present. Appellate attorneys cannot do that. We must use the record that trial attorneys created. And we are stuck with whatever statutes the legislature enacted and whatever precedent cases the courts have decided. We cannot change any of this, so there is not much for us to do except organize it in a presentable form and give it to the appellate court, right?
Wrong. Appeals can be won by strategic and creative thinking—all within the trial court record and the established law.
The Golden Rule
The starting point is my Golden Rule of Appellate Advocacy: “Put yourself in the shoes of the appellate judge.” What do appellate judges want? To do justice and for lawyers to make their jobs easier.
Many lawyers approach appellate courts with this frame of mind: “I’m right on the law, so I should win.” They expect the judge to mindlessly plug the facts into the law, spin a couple of wheels, and crank out an automatic result. A clerk or a mechanic could do that, but it is not why someone becomes an appellate judge. If the cranking turns out a result judges see as unjust, they will find a way to avoid it. They might “distinguish” a case, twist the words of a statute a bit, or read the evidence in a different way.
We have all seen this happen. It can be frustrating. You can rail against it—or you can use it to your advantage. Develop a theme of injustice, then write a statement of facts that demonstrates how the trial court’s ruling led to an unjust result. Use your argument section to spell out how that result does not jibe with the justice goals that underlay the applicable rules of law.
Like all of us, appellate judges want their work day to go smoothly. They do not want to strain to understand what you are talking about. So following certain principles will make the judge’s job easier, which will make the judge like you—and be more likely to rule in your favor.
Construct a Statement of Facts that Shows Injustice
A powerful statement of facts can win the appeal—sometimes all by itself! In reading Shakespeare’s King Richard III, you did not need to hear an argument about why Richard was evil. The facts did the job.
So, tell a story in your statement of facts that cries out for a just result. Here are some ideas on how to prepare an effective statement of facts:
- The judge needs to know the procedural facts first: the basics of what happened in the trial court. But keep this section short. Start by summarizing the complaint and end with the notice of appeal. In between, describe only the procedural events that matter, meaning those relevant to the issues you plan to argue.
- Next comes the section on the substantive facts: what happened to the parties in the real world. Tell the story chronologically. No fancy flashbacks like you see in the movies.
- Always remember: You know the facts well, but the appellate judge knows nothing about the case. So, explain carefully who each actor and organization is. And do not assume the reader will understand the jargon of a particular industry or profession. Define those words and phrases.
- You cannot just pick the facts that help you. You need to comply with the appellate court’s standard of review when you tell the story. For example, if you are defending a summary judgment in your favor, you must view the facts in a light most favorable to the loser.
- Do not omit unfavorable facts. If you do, your opponent will make you look bad, and your credibility will take a dive.
- Cut the fluff. Do not include facts irrelevant to the issues on appeal. Lawyers love dates—usually adding “on or about” to cover their backsides. Don’t. They just make your brief look cluttered. Include only dates that matter.
- Go easy on the pronouns, which can confuse the reader. Better to use proper nouns more frequently than your high school English teacher told you to. In a brief, clarity trumps beauty.
After you make the judge want to rule for you, show the judge how to write an opinion that uses established legal principles to come out with the result you want.
- Begin by writing a coherent outline of your argument and stick to it. Make each subsection short, with short sentences and no fancy words.
- Do not just set out the cases and statutes. Show how the reasons behind the rules support the justice of your claim. For example, suppose you contend that the trial court erred by excluding your evidence as hearsay. You claim the “business records” exception applies. Do not just state the rule. Show that the reason underlying the exception—to allow the jury to hear evidence that is reliable even though not subject to cross-examination—applies.
- Showing error is not enough. You must show reversible error. Persuading the court that the trial judge erred by excluding your evidence needs to be followed by an argument that the jury probably would have rendered a different verdict if it had heard this evidence.
- When you represent the appellant, your true opponent is the trial court, not opposing counsel. Never attack trial judges personally, but show that their rulings and their reasoning were both legally wrong and unjust.
- Be moderate and reasonable. Do not stretch a precedent out of shape. Do not attack opposing counsel personally but do take apart counsel’s arguments, without using words like “outrageous,” “plainly,” and “clearly.”
- Be reliable. Double-check every citation to the record and every case citation. Never frustrate judges by making them look for stuff.
- Your credibility is at stake at every turn. If judges think you are trying to trick them—even once—they will not give much weight to anything else you say.
While the introduction appears first in your brief, it is usually best to write it last. That is when you will have the best handle on the facts, the arguments, and your theme of justice, which is what your introduction should emphasize.
Court rules require a statement of facts and arguments, but they only rarely require an introduction. So why include one? Most lawyers do it for one reason: Everyone else does it. But they do not stop to think about why. The result is that most introductions are ineffective. Indeed, many appellate judges just skip over them.
The problem: Lawyers try to do too much with an introduction. To work, an introduction must be both short and clear. It is hard to do both. In many appeals, it simply cannot be done.
“Short” means no more than three to four pages. More than that, and the judge thinks, “This isn’t an introduction. I might as well skip it and get to the meat.”
“Clear” means easily understandable to someone who knows absolutely nothing about the case. The lawyer writing the brief has lived with the case for many months and knows it inside and out. So the lawyer assumes—consciously and subconsciously—that the judge knows it too. Not true. If your introduction assumes that the judge knows the characters, the story, and the law, it will quickly come across as gibberish. The judge will stop reading it and move to the body of the brief—now with a low impression of the lawyer.
The fix? Usually there is none. The judge cannot be persuaded by your powerful legal argument without first knowing at least the basic facts, but your facts and story are too complex to present clearly in a couple of pages. And you must present the facts honestly. If you omit bad facts, your opponent will clobber your credibility in the opposing brief.
Occasionally, however, the essential facts can be distilled to a few paragraphs, enabling a short, strong, persuasive introduction. If you have it, do it. This can be a great way to begin a brief.
When you cannot write an introduction like this, write a different type of introduction: one that serves a purpose other than persuasion. The first substantive section of the brief will be the statement of facts. While reading it, the judge might wonder “Why am I reading this fact? How is it relevant to the issues I’ll read about in the argument section, which I don’t even know about yet?” A short introduction can give the judge a preview of the legal arguments so the judge can understand the significance of the facts he or she will be reading. Do not try to persuade in this type of introduction—it does not work.
Your brief should work as a single unit. Write each part to support the other parts.
When writing the statement of facts, emphasize those facts that support your theme of injustice and the legal arguments that will follow. Your argument section should repeat the theme and the most significant facts, showing their relevance to the legal principles you discuss.
If the case lends itself to a persuasive introduction, that part of the brief should tie the facts and legal arguments together into a very short space.
One: Clarity is king. Make everything clear as a bell and easy to digest. Write short sentences. Do not use obscure words. Explain the relevance of each fact, each case, and each argument, showing how they lead to the bottom line: why the trial court committed reversible error.
Two: Remember why they are called “briefs.” Judges want brevity. Focus on your theme of injustice and cut almost everything that does not support that theme. Using every word allowed by the court’s word limit does not help you win—it often hurts.
Good luck. It takes a lot to get a reversal. Appellate courts do it in less than 20 percent of appeals. But you can do it.
Myron Moskovitz, Esquire, is director of Moskovitz Appellate Team, a group of former appellate judges and law clerks who handle and consult on appeals in San Francisco, California. He is also the author of “Moskovitz On Appeal” (Lexis, 2015).