The process of planning and presenting a successful appeal starts when you are before the trial judge, whether on pre-trial motions or at trial. It does not start after the case has concluded. An appeal is limited by its record below. Good appellate results come not from taking the record as you find it, but from making sure that the record that you will have, in the event you appeal, contains everything that you need.
All decisions at the trial level must be made with not only immediate relief in mind, but also with what the record will look like if the relief sought below is denied.
As with trial, the chances of a successful appeal increase with preparation. Master the facts and know the record. Identify the issues and their applicable standards of review. Know the relief that you are seeking and the standard of review for your specific issue. View the facts and issues from your client’s perspective as well as from your adversary’s. Identify the strengths and weaknesses of each.
In most cases, your chance of success will rise or fall with the brief. In New Jersey, an appellant’s brief must contain a concise Procedural History, a concise Statement of Facts and the Legal Argument. It should also contain a short Conclusion.
A Preliminary Statement is “optional,” yet this is perhaps the most important part of any brief. Including this section in your brief allows you to paint with a broad brush and tell the judges from the start what the issues are and what they should look for in the remaining portions of the brief. In fact, many judges report that they first read the Preliminary Statement and then the point headings of the Legal Argument as listed in the Table of Contents in order to get their feel for the case.
Well-written Statements of Procedural History and Facts should read like narratives. They should be easily understood by a person untrained in the law. References to the parties should be by either their designations below, plaintiff and defendant, or their actual names.
Legal Argument point headings should be mini-summaries of the arguments that follow. They should be succinct and apply a specific legal principle to the facts of the case. Each point heading should have a “because” in it. The Conclusion should be concise. It should succinctly tell the court exactly what you want them to do and can be stated in the alternative.
Above all, don’t ignore the most obvious. Make your brief short, simple and easy to read so as not to annoy or bore the reader. Make it as easy as possible for the reader to understand what you have written.
The importance of editing your brief cannot be overstated. If you edit your own brief, set it aside for a sufficient amount of time before re-reading it. Consider having a professional service read, review and provide feedback on all the briefs filed in your matter. Or, if you can, ask a colleague, who is unfamiliar with the case, to read the brief. Reading your own brief can cause you to read what is in your mind and not necessarily what is on the paper.
Briefing is now complete and you have received the date for oral argument. Just as with writing, preparation is key. If you have the opportunity, sit in on an argument of another case before the same panel. Observe the judges’ demeanor and pay close attention to the questions they direct to the attorneys. You may also consider using a professional service for your oral argument preparation.
At argument, start by introducing yourself and who you represent. Know your brief and, more importantly, be completely familiar with the specific pages of the appendix and transcript. Flipping through pages of transcripts or appendices to find what you need detracts from your presentation. Present your most compelling arguments first.
Show deference to the judges and follow their lead. Answer their questions completely and directly. If you are asked a question that you agree with, resist the temptation to argue and instead say with confidence “EXACTLY Your Honor.” Similarly, concede points that you know you can’t win.
Lastly, know the specific relief that you are seeking and ask for it directly.
There isn’t a short “how to” guide that can give you all of the answers which will tip the scales in your favor. However, by following these basic rules, you can increase the chance of success for you and your client.
This article was published on August 19, 2013 in The New Jersey Law Journal "How to Guide". To access the publication, click here; see p. 10 for this article.
Read related article: New Jersey Rules Governing Appellate Practice: Going a Step Beyond for the Client