I started my legal career with several years clerking at the Colorado Court of Appeals, and appellate law is one of my practice areas. I usually work as co-counsel with trial attorneys who feel less comfortable with appellate briefs. Recently, the Colorado Court of Appeals issued a 3-0 opinion in my client’s favor. This got me thinking about principles for practicing appellate law and winning as often as reasonably possible.
- First principle—have a good case to begin with! In my recent case, my co-counsel, who was trial counsel, had done a good job presenting evidence and preserving issues. This is also true of my co-counsel in another case I have before the Tenth Circuit. Of course, if you are appellate counsel, you can’t control in retrospect what trial counsel does. But if the arguments on appeal aren’t winning ones, it’s best to let the client know, because why would the client want to spend the money to appeal without a good chance? Also, there are arguments I can’t make with integrity, and arguments I’d be embarrassed to make. So sometimes I decline the case or talk the client out of it.
- Note to trial attorneys: if your case is really important, you may want some independent appellate analysis even during trial preparation or during the trial—or even some independent legal analysis about your trial issues.
- How do you know if appellate arguments are winning ones? Because an appeal is usually a matter of law, it is somewhat easier to predict the outcome of a case—or at least to tell if you have a sound argument. While I can’t “call” a close case, I can do a legal analysis to estimate the merits of many appeals, and predict arguments that will be made (thanks to years of listening to my judges dissect cases). Having an appellate attorney take a fresh look at your matter may prevent your cognitive bias from taking over (even more so if you can get the appellate analysis without disclosing your own position).
- Once you’ve decided to make or defend the appeal, make sure everything you need is in the appellate record. Appellate judges don’t make factual findings, and they won’t take notice of anything that is not in the record. If you haven’t put it in the record, you can’t cite to it.
- Pay careful attention to the rules. Rumor has it that the Colorado Court of Appeals has gotten much more strict about formatting of briefs and such procedural matters. If a brief is stricken for non-compliance, you will get a chance to resubmit it, so it’s not a complete disaster. But it’s annoying and embarrassing. (This happened to me once in an out-of-state appeal where I didn’t figure out the rules correctly.) So try to get it right the first time.
- Provide the correct standard of review. While it’s less common to mention the standard of review in a trial court, the standard of review drives the appeal. Not only are you required to provide it, but getting it right—for each separate issue—is critical to winning your appeal.
- Formulate the issues and structure the brief in a way that makes sense. Even if you are the appellee, you can frame the issues rather than following the appellant’s structure. In my recent case, I didn’t think the appellant’s brief sufficiently clarified the issues for the court—and certainly didn’t clarify them the way I wanted! So I used a totally different structure.
- Allow plenty of time for researching, drafting, and re-drafting. Appellate judges expect clean, clear, well-thought-out briefs. At least, they devoutly hope for briefs like that! When a brief is sloppily written and careless with citations, the attorney loses credibility. For a great checklist, see What to Do When You Think You Are Done with Your Appellate Brief.
- Ask for oral argument if the issue is very important or an issue of first impression. Oral argument doesn’t change the judges’ opinions all that often, but occasionally it does. If the case is factually straightforward and depends on well-established law, like my recent case, you may not need oral argument. My co-counsel chose not to ask for oral argument, and that turned out to be the right call. In important cases, such as those involving serious business issues, constitutional rights, or issues of first impression, you will usually want oral argument.
- Have fun! I love analyzing legal issues and writing briefs. I also think oral argument is fun like skiing a tough slope—terrifying but way cool. Some of my attorney friends think I’m crazy. But you’ve almost got to love this stuff to do it well.
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