Today’s rant involves lessons that I’ve learned during my internship with the Third Circuit Court of Appeals.  Of course, everything related to pending cases and Chambers discussion is confidential.  We’ll start with the baby steps.

Five Introductory Concepts

1. Where’s my jurisdiction?
2. What’s my standard of review?
3. Who has the burden of proof on each issue?
4. Follow the Local Rules.
5. What’s your best binding precedent?

Yeah, I know–they’re basic concepts.  But these five questions frame the basis of everything that you must argue in your brief.  If jurisdiction is in question, it must be addressed forthrightly.  If your opponent has a burden or deferential standard to overcome, emphasize their failure.

Law is a profession with a particularized way of doing business, and you lose credibility (or worse) if you don’t follow the Federal Rules, the Circuit Rules, and the Local Rules.  So know them.  Many Circuits have Local Rules which provide that prior panel decisions cannot be overturned except by the Court sitting en banc, or absent specific situations (e.g., when the Supreme Court has recently issued a contradictory ruling).  So don’t cite “persuasive” authority by another circuit unless there is a dearth of case law on the subject.  Even if it is directly on point, begin with your precedential opinions to lay the framework.  Judges like when you cite their colleagues, not someone from a state they hope never to visit (8th, I’m looking at you).

Randoms

Brief-Writing Concepts

• Don’t underestimate the importance of the big picture–Appellate courts must give instruction and advice to the lower courts. Recognize this, and frame your brief in a way that allows them to fashion a workable standard, or, if advocating change, to defend their new position.
  • Think of policy concerns that a new standard, or the judgment implementing that new standard would create or implicate.
  • If the current standard is undefined, or not well defined, consider what your ideal standard would be, or, in the alternative, a standard that the court would accept that is still beneficial to your client.
• Don’t fake constitutional dimensions to a claim that might not have them–it annoys them. If it is a legal issue, judges will consider it to be important irrespective of constitutional dimension.
• Invoke the burden of proof and any deferential std of review.
• Raise or Waive concept–preserve your rights on appeal.
  • But if you’re raising an argument expressly because you’re preserving it for appeal (or a later ruling by the SC), you should forthrightly acknowledge the controlling authority in the brief.
  • Also be aware that if you can frame it as a denial in your answer instead of an affirmative defense it affects the burdens.
• Know the local rules for formatting, page limits, timeliness, preclusion doctrines, (e.g., NJ’s entire controversy doctrine, or the effect of administrative adjudication on future rights).
• Lay out a roadmap of controlling authority on a subject, and then argue the facts.  If you can coherently and persuasively describe the relevant history and jurisprudence in the area, it’s more likely that the judges will look favorably on your interpretation of the law.  If legal issues aren’t in dispute in this case, then lay the rules out in a beneficial light–foreshadowing what becomes the obvious (and desired) result.  This is especially true for appellants.
• Tell a story–A wise man once told our class that clerks read briefs, and clerks are regular people.  Because of this, briefs with a compelling narrative tend to be easier and more enjoyable to read, and therefore more persuasive.

Oral Argument

• If a judge seems like they’re trying to help you during oral argument, run with it. They’ve read your briefs and aren’t buying whatever bs you’re slinging at the moment; it’s important to be flexible.
• What type of relief do you want? Don’t get stumped.
• Know your record & provide cites to the briefs and the appendix.
• Concede a point if it is clear that you are wrong and it won’t destroy your case–credibility matters.

Comments and elaboration welcome.

Related posts:

1. Stop Wasting the Court’s Time with Poor Writing
2. PSU’s Appellate Clinic files SC amicus brief in Ricci v. DeStefano
3. Appeals Court Says: No Webcasting in Massachusetts Federal Court