TEN DO’S OF APPELLATE PRACTICE
1. Win a Trial. Do not be shy about introducing evidence at trial. It is extremely important to do what is necessary to get the verdict or judgement. Too many lawyers seem to worry about defending a case on appeal and then end up having to prosecute the case on appeal.
2. Protect the Record. Do what is necessary to protect and preserve the record by way of question and answer offers of proof, specific objections, asking for a ruling, seeking findings of fact and conclusions of law, and the like.
3. Get the Right Record Prepared. Be certain that all bench conferences or in chambers conferences are prepared by the court reporter and not missed.
4. Get a Beautiful Record prepared. Remember that this is a Court of Appeals which prescribes rules even to the level of putting tape over staples. Therefore, this is a court which will be affected by the physical appearance of the appellate record (legal file and transcript) and also the briefs and any other pleadings.
5. Do Argue. If a case is worth appealing, it is worth arguing. Most appellate judges love the exercise, and respect the attorneys who do it well.
6. Argue the Equities. Do not assume that appellate judges are just cold hearts making cold decisions upon cold law. If there are equities in your case, include those somewhere in your argument so that they may possibly move the appellate judge.
7. See the “Playing Field” Early. It will put you at ease and help prepare you if you go watch some oral argument before you case is argued.
8. Prepare an Index of the Transcript. This will enable you to find a particular quote in a hurry. If you can find that, you (as the appellant) may be able to sink your opponent’s mis-representation when you do the second portion of your argument.
9. Practice Out Loud. When you have your oral argument prepared, be certain to say it out loud several times. Many things which seem so logical and wonderful inside one’s own head somehow sound ridiculous when they are said. It is an excellent idea to give your appellate argument out loud to an audience who can comment on you.
10. Look for a Theme. Even an appellate argument can have a theme. Appellate judges will appreciate a central thread around which the entire case revolves.
TEN DON’TS OF APPELLATE PRACTICE
1. DON’T Downgrade Your Fellow Attorneys. Judges at all levels are becoming increasingly tired of the acid tongue of attorneys as to their fellow lawyers. There is a difference effective advocacy and downright nastiness.
2. DON’T Write Arrogantly. Appellate judges are also becoming fatigued with the arrogant writing style of lawyers who downgrade one another in print.
3. DON’T Be Nervous About Being Nervous. It is natural to be nervous. However, everyone should avoid overlaying natural nervousness with a second layer of nervousness based on the inability to calm down. Just let the natural nervousness flow. It merely demonstrates that you care about what you are doing.
4. DON’T By-Pass any Question by a Judge. When an appellate judge asks you a question, he or she wants the answer then and there. Do not indicate that you will come back to it later.
5. DON’T Be Dull of A “Potted Plant.” Appellate arguments are too often boring. Try to be lively and interested so that the appellate judges will be enlightened but also entertained.
6. DON’T Start of End on Weak Points. Try to construct your argument so that you begin and finish with strong points, thereby capitalizing on the principles of primacy and recency.
7. DON’T Speak Softly. The judiciary appreciates attorneys who stand up and speak loudly enough to be heard well and confidently enough to be believed.
8. DON’T Be Afraid of Passion – If Sincere and Genuine. If the case is a natural for some passion, don’t be afraid to let it show. The argument can never reach the passion of a jury trial, but need not be completely lifeless.
9. DON’T Be Afraid to Ask for Help. Terry Lord at 474-5511 is extremely courteous in giving all sorts of answers to attorneys involved in appellate practice. All lawyers should feel free to call for help.
10. DON’T Be Too Lengthy. When you have said everything there is to say about a given subject, sit down. Appellate judges do not appreciate attorneys who overstay their welcome by arguing past a natural conclusion or just re-arguing points already covered.