The contrasts between trial practice and appellate practice are stark. "The appellate advocate deals primarily with law, not facts; only with professionally trained judges, not lay juries. A trial lawyer may have days or even weeks of personal appearance in court to persuade; an appellate lawyer has his time dribbled out in minutes …." Ruggero Aldisert, The Appellate Bar: Professional Responsibility and Professional Competence—A View from the Jaundiced Eye of One Appellate Judge ("Jaundiced Eye"), 11 Cap. U. L. Rev. 445, 447 (1982).In light of these fundamental differences, an effective appeal does not merely recycle trial-level points and authorities. Instead, it conveys what the appellate court needs to understand the issues on appeal from both a legal and factual perspective. It allows the appellate court to decide that the controlling legal authority and the factual record either supports affirmance (if your client won below) or requires reversal (if not). And it assists the court in crafting a cogent opinion that supports the conclusion in light of controlling precedent, the record, and the standard of review. In order to effectively accomplish these goals, it is helpful to step back and view the entire life cycle of an appeal.
Conduct the trial with an eye toward the appeal
Trial counsel are well aware that trial court events establish whether and how issues and arguments can be presented on appeal. To lay a foundation for defending a good result or attacking a bad one, think strategically about the presentation of legal issues throughout the litigation and trial. As a general matter, legal theories not advanced in the trial court cannot be advanced on appeal. Consequently, sufficiently developing legal theories is as important as filing motions and making objections.
It's especially important to stay on top of the appellate game during the busy waning days of trial. Issue preservation is key and should not be forgotten in the fray. Matters addressed near the end of trial—e.g., jury instructions, motions for JNOV, etc.—involve core legal issues and thus often are the most viable source of appellate issues.
Consider appealing before entry of the final order
Generally, an appellate court has jurisdiction only over final orders of the trial courts. See e.g. 28 U.S.C. § 1291; Pa. R. App. P. 341. But the trial court's rulings and orders might be subject to review before entry of final judgment. Possible pre-judgment routes to the appeals court include: (1) interlocutory orders appealable as of right, see e.g. 28 U.S.C. § 1292(a), (c), N.J. R. App. Prac. 2:2-4; (2) the collateral order doctrine, see e.g. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949); Pa. R. App. P. 313; (3) interlocutory appeal by permission, see e.g. 28 U.S.C. § 1292(b); Pa. R. App. P. 312; (4) petitions for mandamus and other extraordinary writs, see e.g. Mallard v. U.S. District Court, 490 U.S. 296, 309 (1989), Cal. Code Civ. Proc., § 1086; and (5) entry of judgment as to fewer than all of the claims or parties, see e.g. Fed. R. Civ. P. 54(b); Pa. R. App. P. 341(c). When considering an early appeal, you should ask:
- If appeal is available, must it be taken immediately or can it wait until the conclusion of the case? See e.g. Walker v. Birmingham, 388 U.S. 307 (1967) (merits of an injunction may not be reviewed on appeal from contempt if the injunction could have been appealed earlier); Ortiz v. Jordan, No. 09-737 (S. Ct. Apr. 26, 2010) (granting certiorari on question of whether prison officials may appeal denial of summary judgment on grounds of immunity when they could have appealed earlier but waited until after trial).
- Could practical considerations render later appellate review moot?
- Is an interlocutory ruling or order so fundamental to a case that the appellate court's immediate review is required?
If you win in the trial court, determine whether you should cross-appeal
You have prevailed in the trial court, but your client is dissatisfied with particular aspects of the court's rulings. Assuming your opponent appeals, is a cross-appeal necessary—or even permissible? The Supreme Court has explained the basic but often-misunderstood rule of cross-appeal this way: a party must cross-appeal if he wishes to "attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary." El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 479 (1999). A cross-appeal is required if, for example, you want to "enlarg[e]" your client's rights by arguing that although the jury awarded damages, it was erroneously precluded from considering punitive damages. A cross-appeal in this situation also preserves the punitive damages issue for any re-trial.
If your client received all the relief it requested, you cannot cross-appeal. Moore's Federal Practice, § 205.04[1] at 40. When faced with a "right ruling, wrong reason" situation, you need not file a cross-appeal in order to argue that alternative grounds support the ruling. El Paso Natural Gas, 526 U.S. at 479; see also EF Operating Corp. v. Am. Bldgs., 993 F.2d 1046, 1048-49 (3d Cir. 1993) ("This is simply a corollary to the rule that a reviewing court may affirm … on any basis."). But the argument must be a true alternative basis for affirmance and not an attempt to alter the nature of the judgment. For instance, a defendant/appellee cannot argue that summary judgment should be affirmed because the case should have been dismissed for lack of personal jurisdiction, because these are "wholly different forms of relief." Id. at 1048-49 (contrasting dismissal without prejudice for lack of personal jurisdiction with grant of summary judgment, which is a ruling on the merits with preclusive effect).
A cross-appeal generally is not required to raise questions of subject matter jurisdiction or other quasi-jurisdictional challenges. See e.g. Whitehead v. Okla. Gas & Elec. Co., 187 F.3d 1184, 1189 n.4 (10th Cir. 1999) (mootness); Lesage v. Texas, 158 F.3d 213, 216 n.1 (5th Cir. 1998), rev'd on other grounds, 528 U.S. 18 (1999) (11th Amendment immunity); Nat'l Wildlife Fed'n v. Agric. Stabilization & Conservation Serv., 955 F.2d 1199, 1203 (8th Cir. 1992) (standing).
A final note: although it may be tempting to file a cross-appeal "just to be sure," appeals courts do not look favorably upon protective cross-appeals. See Crocker v. Piedmont Aviation Inc., 49 F.3d 735, 741 (D.C. Cir. 1995) (characterizing a cross-appeal as "worse than unnecessary" because it "generate[s] additional complexity," "disrupt[s] the briefing schedule" and "impose[s] significant burdens on the appellate court").
Don't start drafting the brief until you know the rules—including the local rules—and have a game plan
Many helpful books and articles are available on the art of writing an appellate brief. See e.g. Antonin Scalia & Bryan A. Garner, Making Your Case (2008); Ruggero J. Aldisert, Winning on Appeal (2d ed. 2003); Myron H. Bright, Appellate Briefwriting: Some "Golden" Rules, 17 Creighton L. Rev. 1069 (1984). This article will focus on aspects of the brief—aside from the Argument section—that can work for or against your client on appeal.
Before filing the notice of appeal, counsel should review the rules of appellate procedure and local rules. A brief's compliance with these rules—or lack of compliance—impacts the court's view of counsel's credibility. See Kathleen D. Narko, 19 CBA Record 53 (September 2005) (noting that a former colleague of Supreme Court Justice John Roberts has commented that Justice Roberts believes that good brief writing "conveys not only your argument to the court, but it also conveys a sense of your credibility and the care with which you put the case together.").
Every attorney knows it's important to review the rules, but in the press of business, it is easy to put off this task. Here are a few potentially surprising rules that might provide additional motivation to spend time on the court's web site (or with the rule book):
- In federal courts, the time to file certain papers (e.g., a petition for re-argument en banc) runs from the date of entry on the docket of the Court's decision, while other filing deadlines (e.g., response briefs)are computed based on the date on which another document is served or received. Further, some documents are deemed filed when mailed (e.g., briefs), while others are deemed filed only when received by the Clerk (e.g., motions and petitions for en banc reargument). See Fed. R. App. P. 25, 31, 40.
- In the Second Circuit, you must specifically request oral argument in order for your case to be considered for argument; otherwise it will be decided on the briefs. 2d Cir. L.R. 34.
- The Fourth Circuit assumes that any attorney listed on the brief can argue the case if lead counsel is unavailable. 4th Cir. L.R. 28(b).
- In the Third Circuit, the appellant must identify, with appendix cites, where and how each issue was raised and ruled upon in the district court. 3d Cir. L.R. 28.1(a)(1).
Be selective about issues and arguments
As Justice Ginsburg has remarked: "[A] first-rate brief . . . is selective. It resists making every possible argument and sticks to the ones the court can reasonably be asked to consider." Ruth Bader Ginsburg, Remarks on Appellate Advocacy ("Remarks"), 50 S.C. L. Rev. 567, 568 (1999).
It's best to take a detached approach to issue and argument selection. See Aldisert, Professional Competence at 456 ("The trial lawyer ordinarily cannot evaluate his lost cause objectively."). If you don't know which of the myriad of potential issues and arguments will provide the best grounds for appeal, consult with an appellate practitioner who can view the "cold record" and the legal issues from a perspective more akin to that of the appellate court. You will be able to sift out the most fruitful issues to pursue if you:
- Avoid issues on which the record is not well-developed.
- Select issues that will attract the court's attention, such as issues with jurisprudential significance and issues that can be grounded in an error of law.
- Connect adverse trial court rulings to a fundamental legal error—because legal rulings are subject to a far less deferential standard of review than discretionary rulings or factual findings. The appeal will be more effective if a number of errors—related to, say, evidentiary rulings, expert testimony, jury instructions, and the verdict slip—are tethered to a central issue, such as an erroneous legal conclusion regarding the measurement of damages.
- Pare down the arguments in support of each of your selected issues so that colorable, but weak, legal arguments do not detract from the effectiveness of the overall appeal.
Know what you are asking the court to do
The request for relief is in the last section of the brief, but it should be one of the first things counsel thinks about. The appellee's requested relief is simple: affirmance. But, for the appellant, simply asking for reversal is not enough. After the appeals court reverses, should it remand, vacate, modify, order a new trial, order a partial new trial, dismiss, or do something else? The brief must be specific, and counsel must be prepared to reiterate and explain the requested relief at oral argument. If there is any alternative relief that would be acceptable, the brief and oral argument should make this clear as well.
Know your audience
As Justice Ginsburg has explained, the appellate brief "should play to the audience." Ginsburg, Remarks, supra, at 568. Accordingly, counsel should keep in mind what an intermediate appellate court can and cannot do. It is constrained from above by its own and the highest court's precedent. It is also constrained from below because the findings of the trier of fact can rarely be disturbed on appeal, and the appeals court can only address issues and arguments advanced in the trial court.
Real world considerations also come into play. Intermediate appellate courts are extremely busy. See id. at 568 (characterizing the audience in the federal courts of appeals as "three busy judges who confront some fifteen to twenty sets of briefs . . . several days nearly in a row each month."). Some judges have indicated that there is only time to read a brief once. In order to help focus the court's attention on what is vital, counsel should not skirmish over facts that are not dispositive, and they must resist the urge to join battle on irrelevant points in the opponent's brief.
Don't leave a federal court guessing about the basis for its jurisdiction
Although state courts are by and large courts of general jurisdiction, federal courts are not. The Federal Rules of Appellate Procedure require the appellant to state the basis for both the trial court's jurisdiction and the appellate court's jurisdiction. This is not a mere formality. The appellate court always will independently assess whether it has jurisdiction. See Lazy Oil Co. v. Witco Corp., 166 F.3d 581, 587 (3d Cir. 1999).
Often all a federal-court appellant need say is that the appeal is from a final order and the court has jurisdiction under 28 U.S.C. § 1291. In other instances, however, jurisdiction is not as straightforward. If the basis for jurisdiction is not readily apparent, or could be subject to challenge, "don't skimp on the jurisdiction section of your brief." Leonard R. Garth, How to Appeal to an Appellate Judge ("How to Appeal"), 21 Litigation 20, 22 (Fall 2004). Beyond citing the applicable statute, analogize your case to controlling precedent that permits an appeal under the circumstances of the case. In addition, cite to any portions of the record that illuminate why the order is appealable. If the appeal is an interlocutory appeal by permission, reference the required trial court certification and the order of the appellate court authorizing the appeal. In short, demonstrate that jurisdiction is established.
Use the statement of the facts to lay the foundation for your argument
Although appellate courts deal with legal issues, they decide specific cases. A good brief, therefore, contains an effective presentation of the facts and refers to them frequently in the argument. Indeed, appellate judges consistently say that the statement of facts is an important—if not the most important—part of the brief. See e.g. id. at 23-24. The best factual narrative is one that:
- Flows logically from the statement of the issues and serves as a clear prelude to the argument. After reading the factual narrative, the judge should know what is at issue on appeal and be familiar with the facts necessary to understand your argument.
- Is accurate and complete. Dealing candidly with the unfavorable facts not only is required by the rules, but also is essential for effective advocacy. The other side will point out the bad facts if you don't—and failing that, the court will find them. Just as a good trial lawyer draws out adverse testimony on direct examination, the good appellate lawyer states "bad" facts in the opening brief, and then shows why they do not control the outcome of the appeal.
- Is both fair and persuasive. The rules require evenhandedness, not dullness. A good appellate attorney uses the facts to tell the court an interesting story. Consider whether a thematic structure might be more effective than a chronological one. Foreshadow why these particular facts matter.
- Omits irrelevant facts. Leave out a fact if it does not have any bearing on the issues (as laid out in the Statement of Issues), or will not need to be discussed in the Argument. Dates are often irrelevant.
- Resists the urge to squabble with opposing counsel over an inflammatory statement of the facts. If you win the battle, will the court be required to rule in your favor? If not, leave well enough alone. When you must say something, explain why your opponent's lengthy discussion on a particular point simply does not matter.
- Does not recycle facts from the trial court briefs. Any time saved in this way is a false economy because trial court briefs invariably discuss too much, neglect to address something central to the appeal, or are no longer accurate in light of the trial court's or jury's findings of fact.
- Does not call the parties "Appellant" and "Appellee." See Fed. R. App. P. 28(d). A judge reading her seventh set of briefs for the day will find it easier to engage with the story of "Acme Die Cast Corp." rather than trying to remember which party is "Appellee."
- Uses headers to organize the narrative, move the story along, and yield a table of contents that tells the whole story.
- Includes a record citation for each factual statement. See e.g. Fed. R. App. P. 28(3); Pa. R. App. P. 2117(a)(4). Sometimes the source of the fact is relevant to the court's analysis. For instance, a plaintiff appealing from entry of summary judgment in favor of the defendant should point out that the documents the plaintiff submitted demonstrate a dispute over the material facts.
- Quotes good language found in the testimony or documents. A direct quote strengthens your argument and saves the court the trouble of flipping to the appendix to get the point.
Don't stop at a cursory recital of the standard of review, but look for play in the joints
Effective handling of the standard of review "is the element of appellate advocacy that distinguishes the good appellate advocate." Garth, How to Appeal at 22. Naturally, the standard of review will be clearly stated in the appropriate section of the brief. Beyond that early recitation, use the standard as a touchstone throughout your argument. Explain, for example, how and why the district court's decision amounts to an abuse of discretion (rather than a mere "error").
Find the play in the joints. The record below and the trial court's decision may demonstrate that the ruling presents a question of law rather than fact—and a more favorable standard of review may be dispositive of the outcome of the appeal. Be very clear if you are challenging the court's legal conclusion, but not its factual rulings.
If you are the appellee, do not meekly accept the appellant's characterization of the standard of review. Your opponent may be correct, for example, that the abuse-of-discretion standard applies. But consider the different kinds of "discretion" that coexist within the "abuse of discretion" standard:
- Broad discretion: "[T]he district court's latitude on a new trial motion is broad when the reason for interfering with the jury verdict is a ruling on a matter that initially rested within the discretion of the court," such as the admission of evidence. Klein v. Hollings, 992 F.2d 1285, 1289-90 (3d Cir. 1993).
- Limited discretion: "A court abuses its discretion when it denies a motion to amend a complaint unless there exists undue delay, bad faith, repeated failure to cure deficiencies … , undue prejudice … , or futility …." Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008).
- De novo standard lurking below the surface of an abuse-of-discretion standard: "We ordinarily review the denial of leave to amend a complaint for abuse of discretion, but when the district court denies leave on the basis of futility we review the underlying legal conclusions de novo." In re 2007 Novastar Fin. Sec. Litig., 579 F.3d 878, 884 (8th Cir. 2009).
Put yourself in the court's position, and take the long view
The judge reading your briefs is either appointed for life or expects to win every retention election he will face. He will see your issues again in future years. "Change places with the court" and think about why the court's decision will matter beyond the circumstances of this case. John C. Godbold, Twenty Pages and Twenty Minutes, 30 Sw. L.J. 801, 809 (1976). Good appellate advocacy explains why it is important that the court rule in your client's favor, and the future consequences of deciding otherwise.
Explain how the result you advocate is firmly grounded in a legal principle—either an established one or the new one the court will announce in your case. Public policy concerns often will shed light on how established legal principles should be applied. When case law does not specifically control, the paramount policies reflected in the court's earlier decisions will provide a rule of decision to help the court feel comfortable resolving the case in your favor.
Use oral argument to advance key themes, clear up questions or doubts, and engage in conversation with the court
Gone are the days when oral argument was the most important component of appellate advocacy. The appellate brief is now the chief—often, the only—basis on which the court decides the appeal. Ginsburg, Remarks, supra, at 567 ("[T]here is near-universal agreement among federal appellate judges that the brief is more important [than oral argument]—certainly it is more enduring.").
Still, oral argument provides a forum in which to engage with the court. If you are the appellee, you can clear up any misconceptions engendered by your opponent's reply brief, to which you are not permitted to respond in writing. Whether you are arguing the case or entrusting that task to an appellate colleague, ensure that the bases are covered before argument:
- Distill the argument to two or three key themes—and cast them as points that can succinctly and effectively be articulated during argument.
- Check the status of all cases cited in the briefs. If your appeal involves a novel issue, check for decisions by courts that are frequently cited as persuasive authority. If you intend to rely on a new case at oral argument, inform the court. See e.g. Fed. R. App. P. 28(j); Pa. R. App. P. 2501.
- Perform due diligence once you discover the identity of your panel. Review their prior decisions. Identify issues that are important to them and questions they habitually ask. Try to get a sense of their decisional process. You might be able to anticipate a question on a particular point that matters to a member of the panel.
- Memorize your first sentence, and make it count. It may be the last point you get to make without interruption. A good way to start might be: "The issue on this appeal is whether . . . . " or "The trial court erred by . . ."
- Questions are the most important part of oral argument, so give them priority over your planned points. As Justice Ginsburg explained: "Inquiries from the bench give counsel a chance to satisfy the court on matters the judges think significant, issues the judges might puzzle over in chambers, and resolve less satisfactorily without counsel's aid." Ginsburg, Remarks, supra, at 569. The Court's questions "let counsel know what troubles the court …. Sometimes we ask questions with persuasion of our colleagues in mind …. Other times, we try to cue counsel that an argument he or she is pursuing with gusto is a certain loser … All too often, counsel intent on a planned spiel misses the cue." Id. at 562.
- Never evade a question, say that it has no bearing on your case, or question the logic of the court's inquiry (by saying, for instance, that it misses the key issue or is based on a faulty assumption).
- Appellees have an advantage at oral argument. When you go second, you have a sense of what matters to the court. And that is where you should begin, even if it means throwing away or delaying your scripted first sentence. Address areas where the court seemed persuaded by your opponent's argument or troubled by the trial court's conclusion or reasoning.
What now? Steps to consider after the appeal
The court may issue an unpublished or non-precedential opinion in your favor, but your client may have larger interests that would be served by a published or citable opinion. You can draft a straightforward motion to explain why it would be helpful to trial courts and future litigants for the opinion to be available for citation. Some courts have an established procedure for such a request. See e.g. 9th Cir. R. 36-4.
If you receive an unfavorable decision, you can petition for en banc review or reargument. See e.g. Fed. R. App. P. 35; Pa. R. App. P. 2543, 2544. Such petitions are rarely granted but they may be appropriate when a particularly important issue is implicated, or when your panel was divided. See Patricia M. Wald, 19 Tips from 19 Years on the Appellate Bench, 1 J. App. Prac. & Process 7, 15 ("En bancs most often occur when a majority feels strongly that the panel is wrong about something they care a lot about or which may be precedential outside the confines of the immediate case. . . . En bancs usually follow a strong dissent, but can also be provoked by a unanimous panel composed of a philosophical minority on the court."). When trying to persuade a court to undertake discretionary review, consider both issue-related and jurisprudential questions:
- Is there a conflict among the intermediate appellate courts? Is there confusion in the law or a departure from established precedent of the highest court?
- Does the case present a legal question with broad ramifications?
- Does the case present a good vehicle for reargument by cleanly addressing the key legal issue?
- Is the resolution of the case a manifest injustice?
Conclusion
An appeal is most effective when undertaken with keen attention to the approach that the audience—an appellate court panel—will take in addressing the issues presented in the case. Whether the appeal is orchestrated by appellate counsel or trial counsel, a basic knowledge of what produces success on appeal should inform every strategic decision from beginning of the litigation through to the argument before the appellate panel.
Kim M. Watterson is a partner in the Appellate Practice Group at Reed Smith LLP, resident in the firm's Pittsburgh office. Along with her partner, W. Thomas McGough, she authored an earlier article on why appeals are not business as usual, and why trial counsel should consider working with an appellate practitioner early in the process. W. Thomas McGough, Jr. and Kim M. Watterson, Should I Retain Appellate Counsel?, in Third Circuit Appellate Practice Manual (James C. Martin & Nancy Winkelman, eds., 2006), available through the Pennsylvania Bar Institute at www.pbi.org. Some of the concepts discussed here borrow and expand upon concepts that were addressed in that article. Paige H. Forster is an associate in the Appellate Practice Group at Reed Smith LLP, resident in the firm's Pittsburgh office.
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