Professor Llewellyn on Appellate Advocacy

Days before his death in 1962, Professor Karl Llewellyn gave a talk to the Indiana Bar Association on appellate advocacy. The Professor’s talk concentrated on four points:

Karl N. Llewellyn

Karl N. Llewellyn

Know your tribunal – “The job of an appellate argument is to win a particular case before a particular tribunal, for a particular client. And, since that is so, it begins with the tribunal. . . . It is the tribunal’s view of the facts which will control. It is the tribunal’s view of the authorities which will control, It isn’t yours.”

Frame your issue – Professor Llewellyn turned to the Bible’s Gospel of John for an example of properly framing an issue.

Once upon a time, there was an adulteress that the legal authorities planned to stone. No question about the facts — she was an adulteress. No question about the law — the penalty for adultery was capital punishment by stoning.

So what do you do with both the and law against you? Reframe the issue, saying “He that is without sin among you, let him first cast a stone at her.” John 8:3-7.

Tell your story – It is “suicide” for respondents to rest on an intelligent appellant’s statement of facts, the Professor said. You need to make your positive case, not only in the law, but also in the facts so that the facts fit into your picture.

Prepare for oral argument – Professor Llewellyn lastly explained that the purpose of oral argument is to persuade the court that you ought to win and to make them read your briefs. Use oral argument to capture the judges’ attention enough to read the briefs favorably.

Of the four points, the biblical reference to the adulteress struck a chord with me the most. I have heard the story before, many times, but had never thought of describing it as an advocate  framing the issue. Puts it in a different light.

Other, less eloquent, posts on framing the issues are available here and here.

Anyone have other tips to add? Please leave a reply.

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