Judge Diane Sykes of the United States Court of Appeals for the Seventh Circuit recently wrote, “Advice for Appellate Litigators.” The article offers several appellate tips on writing briefs and handling oral argument. Here are four:
Broaden your perspective – Put yourself in the place of an appellate judge. Take your jury-centered view off of this one case to see how the case fits into the broader legal spectrum. To do this, you need to explain why the result you’re asking for makes sense, not just in your case but in others down the road. Does your argument create an acceptable and workable precedent in future cases? How?
Hypothetical questions from the bench explore this point, so don’t dodge by saying “That’s not this case, Judge.” “No kidding,” Judge Sykes responds. Judges know their hypothetical is not your case, and ask them to fit your case into the bigger picture. Be ready to answer.
Maintain credibility – Don’t overspin facts, overreach on the law, or avoid the weaknesses in your case. Judge Sykes described this as “shopworn” advice yet found that it bears repeating because it is better to deal with your case’s warts forthrightly than to think that judges will not see them too.
Select issues carefully – Brief you best issues and let the weaker ones go. Then later at oral argument lead with the strongest issue you briefed because the judges will pretty quickly interrupt you with questions.
Tell the story – Judge Sykes also urged lawyers to state the facts chronologically, like the narrative in a newspaper or magazine article, and give the Court the “five Ws” of journalism — who, what, where, when, why (and sometimes how). An earlier post offered some ideas on how to draft such narratives.
Judge Sykes’s article includes other appellate tips and is available here – Judge Sykes’s Appellate Practice Tips.
Anyone else have tips to add?