Former Judge Patricia M. Wald gave lawyers “19 Tips From 19 Years on the Appellate Bench.” This delightful essay distills Judge Wald’s work sitting on about 2600 appeals, and writing 800 opinions, while a member of the DC Circuit Court of Appeals.
Here is a summary of five of the appellate tips –
Make briefs brief – “The more paper you throw at us, the meaner we get, the more irritated and hostile we feel about verbosity, peripheral arguments and long footnotes.”
She added, “Many judges look first to see how long a document is before reading a word. If it is long, they automatically read fast; of it is short, they read slower. Figure out yourself which is better for your case.”
Judge Wald continued, “Judges become euphoric on encountering a brief that begins, ‘The only issue in this case is . . ..”
Invoke the judge’s common sense – “The logic and common sense of your position should be stressed; its appropriateness in terms of precedent or statutory parsing comes later . . ..”
Concentrate on why a precedent is persuasive and not simply declare victory on the basis of a 1967 opinion.
Handling abuse – Judge Wald noted that some judges denigrate, demean, belittle, and yell, knowing that counsel cannot answer back. She let those abused this way know that the other judges will respect you if “stand your ground, keep your dignity, don’t stoop to their level. . ..”
Think hard before conceding – “Think hard about the predicate of judges’ questions — your implicit acceptance of them is often more dangerous than any answers you will give to the main question.”
“I sometimes think that there ought to be a rule like the FTC issued for door-to-door or telephone solicitation. Counsel gets 48 hours in which to renege on concessions made under pressure in the courtroom.”
Develop and know the record – “A fully-developed record is lie a warm, woolly comforter to an appellate lawyer; you can wrap yourself up in it in all sorts of ways, and store many goodies in its folds.”
And “[i]f you watch, we don’t ask you so many questions about the meaning of precedent as we do about the underlying dispute in the case: What is it really all about?”
Of these five tips, the one that struck me the most is the caution against concessions. Most articles by judges urge lawyers to concede.
It is refreshing to find one that understands that it is not that simple. There is always the lurking fear that the decision’s lead paragraph will begin, “Counsel for X conceded . . ..” Now you have to explain to X what this is all about.
Has a court ever cited a concession that a judge forced you into during oral argument? Please leave a reply.