On February 11, 2013, the Hawaii Chapter of the Federal Bar Association hosted four Ninth Circuit Judges to discuss “Appellate Practice Tips.” The judges were: Honorable Richard R. Clifton, Honorable Susan P. Graber, Honorable Jay S. Bybee, and Honorable Morgan Christen.
The judges provided many helpful dos and don’ts for appellate practice, including:
- Cases are made or lost in briefing – this is your opportunity to put your best foot forward;
- If you have to choose between time spent writing a great brief or a preparing for a great oral argument, choose to go with writing the most persuasive brief you can;
- Pare down the issues – focus the court;
- Be scrupulously honest with yourself, your client, and the court on the strengths and weaknesses of your case, the facts, and what the law is;
- If you are not honest, the court will find the inconsistencies;
- Advocacy is important, but it must be within the bounds of reason and the professional code;
- Writing long muffles the punch – get to the point quickly and avoid including information that makes no difference to the issue(s) before the court;
- Think through your case and figure out why you should win – try coming up with a short, simple explanation and trying it out on a non-lawyer to see if it makes sense;
- If your case involves an obscure area of the law (to the court – not to you), its OK to take time to explain it in the brief, but if it’s just an area of law that is new to you (but not to the court) do not put all of your learning into the brief;
- Even if the standard of review is technically de novo, the judges may nevertheless give deference to a judge that has experience in that area (example, the Bankruptcy Appeal Panel);
- In making your case, it is OK to focus not only on the importance to your client but on the bigger picture of the overall importance on the governing law (if there is one);
- The judges find the summary of the argument and the facts informative;
- A well told story in the Statement of the Facts will help guide the judge’s view of the rest of the argument;
- Take advantage of the Table of Contents to explain to the court what the case is about.
Specifically related to oral argument, the judges had the following advice:
- Approach oral argument as a conversation;
- This is your opportunity to find out what’s bothering the court and explain/help the court out;
- Cut to the chase;
- It is OK to pause and think of a thoughtful answer versus making a snap response;
- It is in yours and your client’s best interest to argue with great candor because (1) the court will find the inconsistencies, and (2) it wastes time at oral argument if time is spent on the question of whether or not you’ve been honest;
- It is OK to admit your argument is difficul.
On the topic of candor, Judge Clifton also noted that if the judges discover a lawyer cannot be trusted, they will have a hard time trusting what is in the brief.