Page 10 - Court of Appeal and Appellate Practice

S10 | MONDAY, AUGUST 25, 2014 | Court of Appeals and Appellate Practice
| NYLJ.COM

APPELLATE PRACTICE: ADVOCACY

By Joseph P. Sullivan

Five Ways to Impress,

Five Ways to Depress

An Appellate Judge

A

ppellate advocacy is an art, not begin preparation for the argument several timely opportunity to avoid or correct error
shared by every lawyer solely as days or even weeks in advance of the sched- in the conduct of the trial.3

a result of legal training or even uled argument. Allowing an extended period Lawyers preparing for oral argument may
practical legal experience, especially if that of time for preparation for argument allows also ind it helpful to have an initial, detailed
experience is conined to an extensive trial the advocate to think about the case and the outline of each of the issues presented. The
background. Effective appellate advocacy is a presentation best suited to it and to consider outline will likely be revised frequently, and
specialty, the key to which, as in every aspect the questions he might ask if he were hearing shortened, during the preparation period
of the law, is thorough preparation.1
the case for the irst time, as is the case for as the lawyer’s thinking on the key points
the judges on the panel. It also allows for the becomes more focused. With adequate prepa-
avoidance of last minute panic as the day for ration, the outline’s usefulness will be dimin-
Five Ways to Impress
argument draws near.
ished as the lawyer eventually commits to

Prepare. Preparation for oral argument A good irst step would be to reread the memory the essential points of his argument.
varies with the complexity of the case. Even briefs, the opinion, if there is one, or decision Even though the lawyer will come to rely on
though oral argument may, in accordance of the court that decided the case and the memory for the key points of his argument,
with court rules, be limited to only 15 or 20 cases cited in support of and against that the outline may still provide a sense of secu-
minutes, the appellate lawyer must take into
decision. While thus familiarizing himself with rity and serve as a reference during argument.
the issues, the lawyer should be thinking of If reduced to a single page, in large type, the
the most persuasive way to present his argu- outline will also serve to insure that the law-
ments. Not every issue needs to be empha- yer, even in the face of strong questioning

sized, and giving more cognizance than nec- from a “hot” bench, covers every essential
essary to an insigniicant or peripheral issue point in his argument.
can be a self-defeating exercise. Moreover, Hit the Salient Point(s) Immediately.
in preparing an appellate argument, counsel Given the extensive questioning that can be
ought to discern how he will transition back anticipated from the judges on a panel that
into his main argument from his response to is “hot,” a lawyer for the appellant should
the court’s questions.
prepare an opening to take advantage of the
With his recollection refreshed as to the relatively brief quiet period that precedes
applicable law and the holding of the court the judges’ questioning for the purpose of

below, counsel is then ready to review the allowing counsel to introduce himself. Rather
record. Knowledge of the record is critical than a recitation of the facts or the procedural
and counsel should be prepared to buttress history of the case or of misstatements in the
any factual statement to the court in support adversary’s brief, the opening should be a
of an argument with a record reference.
few sentences that immediately arrest the
In searching the record for appellate issues, attention of the court as to why the reversal or
counsel would be well advised to be wary of modiication sought is required. The opening
unpreserved issues, especially in his review should relect the reason why the decision
of the trial transcript. The failure to preserve or order on appeal cannot stand and should account not only the time it will take to make

an issue for appellate review will usually bar be articulated in the simplest and most per- his argument but also the time it will take to
any remedial relief from the error on appeal. suasive language. The lawyer for respondent answer the questions the members of the
The requirement of issue preservation is should take the same approach.
panel will ask. To a large extent, the ability to
based on sound judicial policy. As a general respond forthrightly and persuasively is the
proposition, it assures the opposing party key to success in appellate advocacy. In pre-
the opportunity to respond with admissible paring for oral argument, counsel must take
evidence and pertinent argument, thereby JOSEPH P. SULLIVAN is of counsel to Holland & into account that most appellate benches in
eliminating consideration of new fact issues or the New York state system are “hot” benches,
Knight in New York. A former Presiding Justice of the
legal theories on appeal since, if an issue had Appellate Division, First Department, in New York, meaning the members of the panel will have
been raised, proof might have been offered he concentrates his practice in appellate, mediation, read the briefs before the argument and are
to refute or obviate it in the court of original presumably familiar with the record. Thus,
jurisdiction.2 Furthermore, preservation of arbitration and white-collar matters.
the judges do not have to be educated by
an issue helps promote an error-free trial by counsel as to the facts and issues in the case.
requiring the litigants to afford the court a
To be effective, the appellate lawyer should