Appellat e Law
and the Art of Appellate Advocacy
by Jennifer S. Carroll
ppellate practice has de- In appellate advocacy, however, the
veloped over the years emphasis switches and the attorney
into a specialized area of
Appellate judges must stress the application of law to
facts—keeping in mind the appellate
the law. In Florida, appel- court’s concern for uniformity of the law
late practice was officially recog- often express and doing justice. Thus, the ability to
present thoroughly researched legal
nized as a specialty in 1994, when
The Florida Bar Board of Legal Spe- amazement at the arguments and to present them in a
very orderly and logical manner be-
cialization and Education approved comes more important.
appellate practice as a “certified” number of Letter to author dated March 17,
What is “appellate practice,” and practitioners who In fact, emotional pleas relied
why is it considered a specialty? upon by the trial attorney to con-
How does appellate practice differ treat the appellate vince a jury are considered inappro-
from trial practice? Is there truly priate at the appellate level. As Jus-
an “art” to appellate advocacy? This process as a tice Shaw has observed:
article attempts to address these
The most common mistake in present-
questions and to highlight the continuation of ing oral argument to the Supreme Court
unique skills involved in handling is when an advocate makes a boister-
appeals. the trial. ous jury argument to the justices; this
is very unimpressive. The advocate loses
credibility immediately as he or she
What Is Appellate Practice? appears to be a novice who is familiar
To best understand exactly what neither with the appellate process gen-
issues on appeal. erally nor the Supreme Court in par-
appellate practice is, one must first
Appellate judges perceive a dif- ticular.
understand what it is not. Simply
ference between the advocacy skills
stated, appellate practice is not trial Id.
necessary to litigate a case in the
practice. At first glance, such a de- At trial, an attorney’s major ob-
appellate court, as opposed to the
scription appears obvious. However, jective is to persuade the fact-
trial court. As explained by Justice
appellate judges often express finder—typically a panel of lay ju-
Leander Shaw of the Florida Su-
amazement at the number of practi- rors—that credibility lies on the
tioners who treat the appellate pro- side of his or her client’s witnesses,
cess as nothing more than a con- [T]here is a difference between the skills and the evidence, although contro-
needed in litigating a case before trial
tinuation of the trial. Many and appellate courts. Trial litigation— verted, favors his or her client. Trial
attorneys view an appeal as a “sec- focusing on jury trials—requires jury lawyers ascertain the factual
ond chance” to argue their case be- arguments that are generally struc- strengths and weaknesses of both
tured to lead ordinary people to decide
fore a second jury, and to present something based on compelling emo-
sides of their cases, and then sift,
what they deem to be the crucial tional arguments. True, the individual select, and evaluate the evidence to
facts and equities which will make juror needs to be informed of the law, be presented. To be successful, the
all the difference. These attorneys the facts of the case, and how a certain trial lawyer must build a convinc-
result is called for in the particular cir-
often become mired in the types of cumstance. The trial attorney, however, ing argument from an amorphous
factual disputes that weigh so will invest a substantial portion of any mass of testimony and create an
heavily at the trial level (e.g., wit- argument to the jury in a fact intensive aura of righteousness around client
emotional call to justice in order to ob-
ness credibility issues, emotional and cause.
tain a favorable decision. Thus, the abil-
pleas), but tend to distract the ap- ity to evoke an emotional response is The appellate lawyer, by con-
pellate court from significant legal important in making jury arguments. trast, deals primarily with the law,
THE FLORIDA BAR JOURNAL/JUNE 2000 107
not the facts; he or she argues to Many judges deem the brief to be
judges, not to lay juries. The focus Many judges deem the key part of the appeal, and
of the appellate specialist is on le- oftentimes the court has made up its
gal argument, through written and the brief to be the mind on the issues before the oral
oral advocacy. Broadly stated, ap- argument—based solely on the par-
pellate practice involves the practice key part of the ties’ briefs. Today, in an effort to
of law before appellate courts. The handle their burgeoning caseloads,
function of appellate courts is, of appeal, and appellate courts are restricting oral
course, to review the decisions of argument, and most courts no longer
lower courts to determine if revers- oftentimes the court allow oral argument merely upon
ible error has been committed. Such request. As a result, the written
review involves the interpretation
and application of the law to a given
has made up its brief assumes even more signifi-
cance, in that it is often the “only
set of facts.
At the appellate level, therefore,
mind on the issues shot” counsel gets at the appellate
court. As Justice Shaw has noted:
the aim of the appellate lawyer is to
be persuasive and to effectively as-
before the oral The brief is the most critical element of
an appeal; therefore, brief writing skills
are extremely important. In 1998, ap-
sist the appellate courts in accom-
plishing their review and decision-
argument. proximately six percent of all cases dis-
posed of by this Court had oral argu-
making objectives. In accomplishing ment, therefore, ninety-four percent of
this goal, the appellate practitioner ity can be difficult to achieve. The the cases are disposed of on the briefs
writing of a brief is an arduous task; alone. Furthermore, in the same year,
must be proficient in several key it is clear that less than half of the cases
areas, including, but not limited to: and the writing of a simple, yet com- that warranted a written opinion had an
brief writing; oral argument; and pelling, brief is even more arduous. oral argument. The written brief, there-
rules of appellate procedure. Recognizing the most common mis- fore, is critical to a litigant’s presenta-
tion to the Court.
Knowledge and experience in the take made by attorneys when writing
appellate process are central to at- appellate briefs for his court, Judge Letter to author dated March 17,
taining such proficiency, as they Joseph Nesbitt of Florida’s Third Dis- 1999.
would be with respect to any other trict Court of Appeal advises: • Every second counts.
field of law. Briefs are too complex. Use short de- Likewise, there is an art to effec-
claratory statements that are completely tive oral advocacy. Appellate oral
understood on first reading. If you do not
The “Art” of make your client’s position “simple” you advocacy differs considerably from
Appellate Advocacy can’t expect the judges to do it for you. argument at the trial level. What
• “The pen is mightier than the Most of your time should be spent in will often work with a jury will an-
reading, evaluating, and comprehending tagonize appellate judges; as a gen-
your own case. Outline, at least in your
There can be little dispute that mind, the matter about which you must eral rule, appellate litigation is
communication through the written convince the jury or the judge. If you do about legal—not factual—argu-
word is an art, and appellate brief this, brevity will naturally flow. ment.
writing is no exception. In compos- Letter to author dated March 4, Apart from the substantive differ-
ing a brief, the appellate practitio- 1999. ences between argument at trial and
ner must know which questions to The art of appellate brief writing on appeal, the technique of argu-
raise, which arguments to pursue, is further illustrated by the state- ment in each instance also differs.
and which facts to stress. He or she ment of facts, which to many appel- Time restraints in the appellate
must determine the most significant late practitioners is the most impor- court are, of course, much stricter
legal issues worth pursuing on ap- tant and challenging part of the than in the trial court. A trial law-
peal and present only the strongest brief. The statement of facts must yer may take days or weeks to per-
arguments. be forceful; it should not, however, suade a judge or jury. In a typical
The technique of writing is be one-sided or argumentative. If it oral argument, counsel is limited to
equally significant. Arguments, no is, the credibility of the brief is un- only 15-20 minutes. Thus, the effec-
matter how strong from a substan- dermined. There is, indeed, an art tive appellate advocate must reduce
tive perspective, lose their force if to portraying one’s case in a sympa- the case to its bare essentials, i.e.,
not expressed cogently. To write a thetic light without disregarding the those few core points which will de-
convincing brief, counsel should adverse facts or appearing argumen- termine the outcome of the case and
adopt a simple style consisting of tative. Writing a statement of facts can be presented in just a few min-
short sentences, active verbs, and that is necessarily neutral in form utes.
concise paragraphs. The words must but persuasive in effect takes con- Without question, appellate
be chosen carefully, and should be siderable skill; it is a delicate, and courts appreciate simplicity. In the
clear and direct. As all lawyers (both difficult, task for even the most ex- words of Judge Nesbitt:
trial and appellate) know, simplic- perienced brief writer. Make your oral argument simple.
108 THE FLORIDA BAR JOURNAL/JUNE 2000
Reinitiate the reason why reversal is in today’s legal environment, given tion, or other extraordinary writs?
warranted and relate it to the record in
the increasing complexity of cases 5) Which “partial final judgments”
and the heavy appellate court can be appealed, and which must be
caseload. Appellate judges have lim- appealed, within 30 days?
Oral presentation should neither be ited time to examine the record and 6) What is a final order subject to
stilted nor formalistic. Present it at a
level of comprehension that you would cited authorities. Consequently, appellate review?
in telling your neighbor who is intelli- counsel’s skill in sorting out what 7) Does a motion for rehearing (or
gent and has finished the sophomore is truly important in the case and motion for reconsideration) ever toll
year in college.
in presenting appellate argument in the time for taking an appeal from
Letter to author dated March 4, a concise and convincing manner is an interlocutory order?
1999. crucial to prevailing on appeal.
Counsel would be ill-advised to • Navigating procedural Appellate Attorney and
rely on “canned” arguments in ap- landmines. Trial Attorney Essential
pellate oral argument. The true pur- In the appellate arena, there ex- Components of Process
pose of oral argument is to provide ist several procedural “landmines” Both the appellate attorney and
appellate judges with an opportu- which, as a general rule, are more the trial attorney are essential com-
nity to ask questions and address easily navigated by the experienced ponents of the litigation process.
their concerns regarding the case. appellate practitioner. The answers The difference between the two lies
Herein lies one of the key distinc- to many procedural dilemmas that not in ability, but rather in focus.
tions between appellate and trial arise cannot always be found in the The trial attorney’s focus is on gath-
advocacy. In appellate oral argu- Florida Rules of Appellate Proce- ering facts and presenting these
ment, the practitioner has to make dure; often, such answers may be facts, consistent with the law, to
his or her argument by means of re- derived only through experience in support his or her client’s position.
sponding to judges’ questions; he or the workings of the state appellate The appellate attorney’s focus is on
she must use those responses as a process, as well as an understand- placing the relevant facts in the con-
transition to presenting his or her ing of the case law and the local text of the appropriate law and over-
position. Despite intensive question- rules of each court. Potential coming legal hurdles faced at trial.
ing from the appellate bench, the “landmine” issues that can cause At the appellate level, counsel must
appellate practitioner has to keep serious problems for the average analyze the entire record and make
the argument on track and not lose practitioner include the following: the appropriate legal arguments in
any sense of direction. 1) What constitutes “rendition” of support of affirmance or reversal.
This skill is far different from that an order for purposes of taking an Appellate practice has evolved
required of an attorney in question- appeal? into a specialized area of the law,
ing witnesses at trial. At the trial 2) What post-trial motions toll the and justifiably so. The fundamen-
level, counsel determines what time for taking an appeal? tals of appellate advocacy—writing
questions to ask and what argu- 3) Which interlocutory orders are a simple, persuasive brief, making
ments to make. At the appellate appealable as “appealable nonfinal an effective oral argument, and hav-
level, judges exercise considerable orders”? ing a command of the appellate pro-
control during oral argument, and 4) Which interlocutory orders are cedural rules—necessarily reflect ef-
it is the goal of the astute appellate proper subjects of petitions for writ fort, skill and, at the highest level,
practitioner to shape the argument of certiorari, petitions for prohibi- art. u
nonetheless, through his or her an-
swers to questions.
Expertise in brief writing and oral
argument is all the more important Poverty. Homelessness. Hunger. Despair.
You can ignore the problems
Jennifer S. Carroll is a board-cer- for just so long. Or you can be part of the solution. For more than
tified appellate lawyer concentrating her 100 years, Volunteers of America has reached out to the nation’s
practice in state and federal civil ap- most vulnerable individuals, offering them the help they need to rebuild
peals. She is admitted to practice before
the Supreme Court of the United States their lives. Our programs serve children, families, the elderly, and
and the United States Court of Appeals those who have lost their way through addiction, crime, or illness.
for the 11th Circuit. Before entering pri-
vate practice, Ms. Carroll served as se- Find out what you can do.
nior judicial law clerk to Judge Ralph
W. Nimmons, Jr., First District Court of
Appeal of Florida. 800/899-0089; www.voa.org
This column is submitted on behalf
of the Appellate Practice Section, There are no limits to caring.
Lucinda A. Hofmann, chair, and
Jacqueline E. Shapiro, editor.
THE FLORIDA BAR JOURNAL/JUNE 2000 109