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Acknowledgments

I. How Judges Decide Cases and Why That  is Important to You

Although judges want to do what's right, their view of what's "right" varies with their background and philosophy. According to Richard Posner, Chief Judge of the United States Court of Appeals for the Seventh Circuit, it is "common" for "appellate judges to slant the facts in favor of the outcome" they desire. The successful appellate advocate has to recognize this, and seek to discover the "hot button" of the judges who will hear his or her appeal.

II. Too Many Cases

Appellate courts are swamped with cases. According to Patricia M. Wald, Judge of the United States Court of Appeals for the District of Columbia Circuit, more than forty percent of the appeals filed in her court are handled summarily-often the judges don't even read the briefs, but, rather, rely on the recommendations by staff attorneys. The effective appellate lawyer must be able to cut through the forest of cases and make the appeal one to which the court will devote serious attention.

III. The Brief

The brief is the most critical part of appellate advocacy, as many courts are eliminating opportunities for oral argument. Even when oral argument is allowed, the judges read the briefs ahead of time and will have, tentatively at least, made up their minds.

1. You Must Show Why Your Client Deserves to Win

You must show the judge that "right" is on your side. You must also, however, be aware that appellate courts have different roles-the higher a court is in the judicial hierarchy, the less concerned that court will be about doing justice between the parties, and the more concerned about the legal issue

2. Give the appellate judge tools to decide in your favor

Unless there is controlling precedent in your jurisdiction that is "on all fours," you and the court can find legal support for almost any proposition. The key, then, is not so much as finding legal authority for your position-although that is important-but, rather, showing the judges that you should win and that the law permits you to win.

3. Why Briefs Must Look a Certain Way

You must follow scrupulously the rules that prescribe how your appellate brief should look.

4. Content

An element-by-element analysis of the various parts of the appellate brief, and how to make each an effective, persuasive tool in your appellate-advocacy arsenal.

5. The Keys to Writing an Effective Brief-A Part-By-Part Analysis

A. Be Honest and Forthright

B. Make the Bad Facts Work For You

C. Question Presented

D. Pick Your Issues With Care

E. Summary of Argument

F. Statement of Facts

G. Statutes Involved

H. Argument

I. Procedural History

J. Conclusion

K. The Appendix

L. The Reply Brief

IV. Oral Argument

Your chance to defuse concerns that the judges may have about your position. Why you must rely on reason, not rhetoric. Why, also, you should never read your argument, but, rather, be relaxed-ready and able to engage the judges in conversation about your case. You must know the record cold.

V. Standards of Review-Gold Mines and Mine Fields

The various standards of review applicable on appeal, and how to make them work for you.

VI. Preserves and Toast

How to avoid the trap of "waiver."

VII. Get Rid of the Clutter

Common habits that hinder effective, powerful advocacy:

1. The "(Hereinafter referred to as . . .)"

2. Acronyms and abbreviations

3. Citations-How to make them clear

4. Simple Words-Break complex thoughts into simple words

VIII. Advocacy in the Real World

Part-By-Part Analysis of Briefs in Two Cases-One Civil, One Criminal. An evaluation of what was done right, what was done wrong, and what could have been done to make the briefs forceful, persuasive tools. Learn how to view the issues the way appellate judges do.

1. Computer-game Mayhem (Micro Star v. FormGen)

2. Fair Play, Due Process, and Common Sense (McGuire v. Estelle)

IX. Conclusion

Index