appellate work has many similarities to

trial work at the at the trial court

level

obviously

but there are some significant

differences if you are the the party

you’re representing the party appealing

you’re the appellant you’re representing

the appellant you must convince the

court of appeals

that the trial court the jury however

whoever decided the case and however it

was decided

made an error that was so significant

that there should be a reversal

something’s got to be changed

if you won below

which i’ve had more experience with i’m

happy to say

but no one has an unblemished record

that way then you want to convince the

court of appeals that it was done

correctly below

nothing should be disturbed here

so that’s the goal

you need to understand

what the standards are

for

the kind of appeal that you’re pursuing

and keep those standards in mind i’m not

going to go into that it gets technical

and there’s really no need to do that

here but it’s very important to keep

that in mind

when it comes to

brief writing

one wants to think through very clearly

after having studied the record below

and when i say below i mean at trial

what happened no everything had happened

know the trial record cold and then

begin to formulate what are the issues

that i can raise on appeal

that have real meat to them that have

power and force to them that are going

to get the attention of the court of

appeals and hopefully persuade them to

reverse

or

i’ve studied the record i’m representing

the apolly the party that won

and there’s nothing in this record that

would support a reversal or disturbing

in any way

the decision that was made below

so that’s what i’m trying to do i’m

studying the record i know it cold

i think about what the issues are that

are worth raising and then i start

writing

the brief of course has to be clear

succinct

without being too brief

logical persuasive and completely

supported there is no statement of law

that’s made

that isn’t supported by

cases that really do mean what you say

they mean

there are quotes from the record that

are not cherry picked taken out of

context they really do represent fairly

what what the point is that you’re

trying to draw out so that when the

clerks

the the appellate clerks who study the

record

look at the representations that have

been made in the brief and they are

representations they can say

this brief is reliable this brief is

trustworthy this brief deserves great

weight

and it is persuasive

when it comes to oral argument

i’m i’m reminded

of

a dinner that i attended um saturn and i

sat next to justice scalia i had known

him

uh because i’m a trustee of the supreme

court historical society and he and i

had done a number of events together and

somebody else at the table

he was sitting directly to my left

somebody else at the table asked him

about

the importance of oral argument on

appeal

because lawyers always wonder if it

really makes any difference

and scalia sat back in his chair

thoughtfully and he he was the kind of

person who usually answered questions

with remarkable speed

and he said after thinking about it a

minute they’re much more important than

you think

and then he said

what makes a great oral argument great

is a lawyer who has understood the case

and the issue so well that he or she

knows what’s important

and what to argue and what not to argue

because it’s peripheral it doesn’t

matter it’s too weak

that lawyer understands the case and

that lawyer has a better chance of

making points and changing minds or

reinforcing viewpoints that are

favorable already to that lawyer’s

position just because he or she is not

wasting time on peripheral things that

don’t matter is not yielding to

insecurities that so many lawyers have

i’ve got to raise everything

and justice scalia was saying you

shouldn’t raise everything you should

raise the things that really matter and

you should understand the case that well

that you really know what matters and

what doesn’t

in oral argument

you must never be afraid of what we

refer to as a hot bench that’s

panel members judges or justices if

we’re talking about the supreme court

who are peppering you with questions

that sounds intimidating it sounds

horrible it’s a great opportunity the

judges are telling you what’s bothering

them

you’re getting a chance to change minds

or as i said earlier to reinforce a

viewpoint that some of them already have

that are favorable to you don’t fear

questions seize them

be responsive to them be clear be

succinct

answer them and also

bear in mind that the time limits are

excruciatingly short

most cases in the united states supreme

court only allow 30 minutes to argue 30

minutes in most federal and state

appellate courts it’s no more than 15

minutes and when when the red light goes

on when you’re at the lectern that means

you sit down

in some circuits in some united states

courts of appeal

if you’re in mid-sentence you’re going

to be told to stop

so you have to be mindful of the time

that’s why everything you say

matters

and sometimes

you have to be p prepared for the worst

kinds of surprises i was arguing a

trademark appeal that we had won below

and we we wanted in the court of appeals

as well the first question that was

asked by the first judge

in the appellate court someone i knew

very very well and like a lot

his question to me

caused me to realize in horror that he

didn’t understand the first thing about

what a trademark was

and this is a trademark case and i said

to myself

in a flash my god i’ve i’ve got maybe i

can allocate five minutes out of my 15

maybe six minutes no more than that

to trying to tell him what a trademark

is and how that trademark relates to the

case

that

is being argued that day

it all worked out but the point is you

can’t anticipate that something like

that will happen things like that happen

so you you have to be emotionally

flexible you have to be intellectually

flexible

and you should structure your notes

such that they’re not in any way a

script

not at all you can move from one point

to another point to another point

because you don’t know what’s coming at

you

that’s how i approach appeals