Appellate work shares many similarities with trial work at the trial court level, but there are significant differences. For the party appealing, known as the appellant, the goal is to convince the court of appeals that the trial court or jury made an error significant enough to warrant a reversal or change. If representing the winning party from the trial, the objective is to persuade the court of appeals that the lower court’s decision was correct and should remain undisturbed.

Understanding the specific standards for the type of appeal being pursued is crucial. While the technical details may vary, keeping these standards in mind is essential when crafting an argument.

In brief writing, it’s important to thoroughly review the trial record, knowing every detail, to identify issues that have substantial merit. The focus should be on arguments that are compelling and have the potential to persuade the court of appeals, rather than on peripheral issues that are unlikely to sway the decision. If representing the appellee (the winning party at trial), the aim is to demonstrate that nothing in the record justifies a reversal or modification of the trial court’s decision.

The brief must be clear, logical, persuasive, and well-supported. Every statement of law should be backed by relevant case law, and any quotations from the record should be accurate and representative, avoiding any mischaracterization. This reliability enhances the brief’s credibility with the appellate clerks who review it.

Regarding oral argument, a memorable example comes from a dinner conversation with Justice Scalia, who emphasized the importance of oral argument. He noted that a great oral argument stems from a lawyer’s deep understanding of the case and the issues, knowing what matters and what is best left unargued. This approach allows the lawyer to focus on the strongest points, avoiding the temptation to raise every possible issue, which can dilute the impact of the argument.

During oral arguments, a “hot bench”—judges or justices actively asking questions—should be viewed as an opportunity rather than a challenge. The questions reveal the judges’ concerns, providing a chance to address these directly and potentially change or reinforce their viewpoints. It’s crucial to be clear, concise, and responsive to these questions.

Time management is another critical aspect. Appellate arguments typically have strict time limits, such as 30 minutes in the U.S. Supreme Court and often as little as 15 minutes in other federal and state appellate courts. Lawyers must be mindful of these limits, ensuring that every point made is significant.

Unexpected questions can arise, requiring flexibility. For instance, in a trademark appeal case, a judge’s first question revealed a lack of understanding about a fundamental aspect of trademarks. The lawyer had to quickly adjust, allocating part of the limited time to clarify the basic concept before returning to the case-specific arguments.

Overall, success in appellate advocacy demands emotional and intellectual flexibility. Lawyers should prepare their notes in a way that allows them to pivot smoothly between points in response to the flow of the argument, rather than relying on a rigid script. This adaptability is key to effectively handling the dynamic nature of appellate hearings.