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Appellate Specialization and the Art of Appellate Advocacy


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									                                             Appellat e Law

                          Appellate Specialization
                     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,
field.                                                                                   1999.
   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
                                          preme Court:
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.

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
your case.
                                             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

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