Chief Judge Kozinski of the Ninth Circuit Court of Appeals once carefully explained to lawyers how to lose an appeal. His 1992 lecture, The Wrong Stuff, stressed three phases:
Ignore the mechanics –
Write a fat brief that cheats on the type size. Bind it so that it falls apart, and make sure that it has up-side down pages printed with low toner on photocopiers with a scratched glass.
Write poorly –
Bury your winning argument among nine or ten losers. Throughout the brief, use block quotes and convoluted jargon, acronyms, and Latin. Avoid quoting or even citing the controlling statute. And call opposing counsel and the trial judge names.
Present poorly –
At oral argument, keep your knowledge of the record secret and divert the judges’ attention away from the record’s gold nuggets. Overclaim the strength of your case. Postpone answering questions, cut off the judge’s question to answer a question that was not asked, and then stonewall.
Above all else, make a jury argument. “Few things are quite as funny as hearing an appeal to passion during an appellate argument.”
In this part of his talk, Chief Judge Kozinski gave his oft-cited advice about knowing the record:
There is a quaint notion out there that facts don’t matter on appeal — that’s where you argue about the law; facts are for sissies and trial courts. The truth is much different. The law doesn’t matter a bit, except as it applies to a particular set of facts.
1992 BYU L. Rev. 325, 330 (1992).
Hat tip to Counsel Press for reminding me about the talk.
Any one have other tips to add? Please leave a reply.