Appeal Pro Tip: How to craft a successful appellant's argument.
Photo: Norwood Themes on Unsplash
I write a lot of appellant’s briefs for the clients of other attorneys (either as a ghostwriter, meaning, the lawyer signs their name and mine is never mentioned, or as Of Counsel, meaning, my name appears on the brief along with theirs).
There is something I keep seeing over and over again: lawyers get so attached to their arguments that they don’t want to let them go. But that attachment is a hindrance to success on appeal.
If there is one lesson I want all attorneys to know, it is that you won’t achieve success on appeal by simply restating your lower court arguments. There is a reason why you lost in the lower court. Better take the advice of an experienced appellate attorney to identify why, and to help you find an argument that has a chance of getting justice for your client.
If you don’t want to consult the expertise of an appeals lawyer, then here are three places where you can look for a better argument (note: these tips apply to appellant’s arguments; a respondent’s arguments will be slightly different and I’ll write more about that later):
Applicable standard: look for an error in the statutory, precedential, or evidentiary standard applied by the judge; for example, did the judge base the decision on disputed facts? Did they consider the credibility of a witness in doing so? These would be errors in the application of the summary judgment standard.
The court’s authority: look for an exercise of nonexistent authority; for example, did the judge take or compel an action that was not derived from a contract or statute provision or a well-established right to do so? This could be a decision that was outside the court’s authority, and therefore reversible.
Application of the facts to controlling law: look for a mistaken conclusion about what the case law or statute says about a particular set of facts; this is the most common type of appeal argument so there are many variations.