Five Judges from the Fifth Circuit Court of Appeals Offer Pointers on Appellate Advocacy

The Dallas Bar Association Business Litigation Section recently hosted an outstanding panel discussion with five judges from the Fifth Circuit Court of Appeals.  I have been attending appellate continuing legal educations presentations for seventeen years, and this one was among the best I’ve seen.  Judges Gregg Costa, Jennifer Elrod, James Graves, Stephen Higginson, and Catharina Haynes all offered pointers for lawyers practicing before the Fifth Circuit.  Here are some that I found particularly noteworthy:

1. It is extremely easy to waive error in federal court, much more so than in state court.  So having a lawyer focused on error preservation in the trial court is invaluable.

2. Complete your appellate brief at least seven days before its filing deadline.  Set your brief down for a couple of days and then re-read it.  You will likely find areas for improvement that you would not have found if you hadn’t taken a break from working on your brief.  Also, ask someone unfamiliar with your case to read your brief and provide input as to what could be clarified.

3. If the disposition of one of your issues is governed by a particular fact or by a controlling opinion, it might be helpful to specify that fact or opinion in the issue presented section of your brief.

4. Appellate judges are all generalists.  Even those who had a specialty before taking the bench have since become generalists.  Consequently, don’t assume that the judges are familiar with a particular area of law.  If your case involves an area of law that a generalist wouldn’t know, include some background about the relevant law in your brief.  Consider citing to well-known treatises for this background.

5. If you can’t avoid using technical jargon or acronyms in your brief, be sure to define them.

6. Draft your brief as if your audience was composed of well-educated laymen rather than lawyers.  Doing so will make the brief much clearer.

7. Clarity, brevity, honesty, and civility are the four most important characteristics of a good appellate brief.  Although it shouldn’t require an explanation, civility means not being rude or impolite.

8. If you indicate in your brief that something is in the record, be sure that it really is.  Electronic records make it quite easy for judges to confirm the accuracy of your references to the record.

9. If you truly want oral argument, be sure that your brief explains in detail why oral argument is needed for your case.  Boilerplate language is not helpful here.

10. In appellate briefing and at oral argument, don’t say “I think,” “I believe,” or “it seems to me.”  The judges don’t want your opinion.  They want you to tell them what the law requires.

11. Unnecessarily criticizing the trial court judge is offensive to the appellate judges.

12. At oral argument, begin by letting the judges know what issues you intend to address and in what order.  Then, when you are about to begin actually addressing one of those issues, let the judges know which issue are about to begin addressing.

13. At oral argument, be prepared for a judge to ask: (a) what is the most critical fact in your case; (b) what is the most important opinion you rely upon; and (c) what is the rule of law you would like the court to adopt.

14. At oral argument, (a) don’t speak too quickly; (b) don’t speak too quietly; (c) don’t gesticulate too much; (d) don’t be theatrical; and (e) don’t be self righteous or indignant.

15. At oral argument, don’t ask questions of the judges.  It is their job to ask you questions, not vice versa.

16. You can never be too prepared for oral argument.  Know the record.

17. If asked to concede an obvious matter at oral argument, do so.

18. At oral argument, don’t say “with all due respect.”  Judges perceive that as telling them you think that they are idiots.

19. At oral argument, be sure to directly address any question posed to you.

20. If, after filing your brief or making your oral argument, you realize that you have made a mistake (in citing to the record or the law), you should file a letter correcting your mistake.  This will go a long way toward restoring your credibility with the judges.

21. Don’t make weak arguments.  If there is a weakness in your case, acknowledge it and explain why you should nevertheless win.  Lack of candor is the single worst mistake that you can make in appellate advocacy.  If you fail to acknowledge important facts or legal authority, the judges will certainly talk to their colleagues about you. . . and may even admonish you publicly when they issue their opinion.

UPDATE: The Texas Lawbook’s Mark Curriden saw this blog post and asked me to revise it into an article.  On September 15, 2014, The Texas Lawbook published the article.

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