Tuesday, December 19, 2017

A Winning Update to a Classic Appellate Text

In the third edition of Winning on Appeal, Professor Tessa L. Dysart and Judge Leslie H. Southwick (5th Circuit) build on this classic appellate text by Judge Ruggero J. Aldisert.

Winning on Appeal is divided into five parts:

Part One: The Theory and Criticisms of Written and Appellate Advocacy.
Part Two: Technical Requirements for Briefs
Part Three: The Nuts and Bolts of Brief Writing
Part Four: The Nuts and Bolts of Delivering Oral Argument
Part Five: Checklists

The meat of Winning on Appeal starts with Part Two. Chapter Four, Jurisdiction, and Chapter Five, Issue Preservation and Standards of Review, are particularly helpful for those new to appellate advocacy. In these chapters, the authors walk readers step-by-step through appealability considerations and help readers learn to distinguish appealable orders from non-appealable ones (a trap for the inexperienced). The chapter also includes information about computation of time, tolling, and extension under Rule 4(a)(5).

Chapter 5, on issue preservation, is a gem. The authors note:

The late Judge Aldisert
The necessity of issue preservation is the short answer to the question, when does one start to prepare for an appeal? The textbook response is, the earlier the better. A competent football coach would not dare go into a contest without a game plan. Likewise, no competent trial lawyer will participate in a trial or hearing without a definite theory or strategy supporting the contention or defense. The coach prepares for the entire game, for all four quarters. Most lawyers do not. They prepare only for the first half, the trial itself. If an appeal is necessary, they will wing it.

The authors go on to discuss the three categories of facts—basic, inferred (or circumstantial), and mixed questions of law and fact. The authors then offer an excellent discussion of the standards of review for different types of fact-finding (e.g., by judges, by administrative agencies), for mixed questions of law and fact, and for purely legal questions. This discussion is followed by a review of “discretion” in which the authors invite readers to consider the different degrees of discretion and stress the importance of being able to articulate the relevant degree of discretion to the appellate court.

As you’d expect, part three, on brief writing, is my favorite. The authors of Winning on Appeal first tackle brief writing with tips for selecting and narrowing the issues on appeal. As they note,

“More is not better in appellate advocacy. Judges are interested only in arguable points.”

Professor Dysart
This discussion also helps readers decide how to organize issues (strongest argument first absent a threshold issue) and how to order issues as the appellee, two important considerations that don’t get enough (or any) attention in some texts.

In the next few chapters, the authors address researching the issues, organizing research, and evaluating and selecting authority. Winning on Appeal includes a handy Citation Evaluation Chart to help advocates maximize the persuasive value of the authority they choose. Interestingly, the authors caution against a technique that many lawyers love—string citing—calling it “generally irritating and useless.”

The authors then go on to cover distinct parts of briefs, such as issue statements and point headings, and include entire chapters devoted to the often-overlooked statement of the case and summary of the argument sections.

The chapter on writing, editing, and citation contains much of the
Judge Southwick
standard advice, such as avoid lawyerisms, be concise (with a hat tip to the excellent Plain English for Lawyers), be clear, be civil, and edit “vigorously.” But the authors do wade into the contentious footnote-versus-in-text-citation debate: They prefer in-text citation:

“[Footnotes] do[ ] not serve the intended audience: judges and their law clerks.”

One of my favorite chapters in Winning on Appeal is Chapter 11, entitled The Brief: The Required Logical Form for Each Issue. After lawyers-to-be finish first-year legal writing courses, many don’t think much about the logic behind written legal arguments. This chapter discusses the differences between deductive and inductive reasoning, with easy-to-follow examples of each, and includes helpful tips for recognizing and avoiding logical and linguistic fallacies. This chapter isn’t something you see in a typical text on appellate advocacy but is a wonderful addition to Winning on Appeal. 

The text concludes with chapters on preparing for and delivering oral argument. These chapters contain a multitude of information about topics even seasoned appellate practitioners may not have thought much about, including the use of visual aids, strategies for arguing before a cold bench, and the best ways to answer questions from the bench (including tips for cases involving divided representation).

If a more complete guide to appellate advocacy exists, I haven’t read it. And the advice from judges and experienced practitioners peppered throughout the text also sets it apart. If you’re new to appellate practice, this book will be a godsend. If you’re an experienced appellate practitioner, you’ll still find many excellent, nuanced tips that will help you take your practice to the next level.

While Winning on Appeal is targeted at appellate practitioners, this text should be on the bookshelf of anyone who thinks and writes about law.

You can find Winning on Appeal here