Law Clerks’ Top 10 Tips for Effective Appellate Advocacy
By Sarah Kaltsounis
One of the most interesting aspects of serving as a judicial law clerk is the perspective gained from being a consumer of written and oral advocacy instead of being its producer. After reading hundreds of briefs and listening to countless arguments, clerks quickly realize what works and what doesn’t. Recently, I asked local clerks and externs for the advice they’d like to share with the attorneys whose work they review, and here are our top 10 tips for becoming a more effective appellate advocate:
1. Always, always, always cite the law accurately. Judges rely on their clerks to pick briefs apart, checking to make sure that every assertion is correct. You will quickly lose credibility by misrepresenting or twisting a case’s holding (and opposing counsel will have a field day with your error).
2. Don’t hide the ball. Include a pinpoint citation for every legal assertion. There’s nothing a clerk hates more than having to wade through a 50-page opinion to locate a one-sentence proposition. Also, avoid blanket citations to large chunks of the record (e.g., the entire transcript of a witness’s testimony). If there’s something you want to highlight, save the poor clerk some time by noting the page and line on which it appears.
3. Know and apply the appropriate standard of review. One question is paramount in the mind of every appellate judge and clerk: “What is the standard of review?” Appellants should state the appropriate standard for each issue in their briefs.1 The Ninth Circuit has even posted a handy Standards of Review Outline on its website (www.ca9. uscourts.gov). Don’t simply offer the obligatory citation and then ignore it for the rest of your brief; understand the level of deference that must be given to the decision below and show the court throughout your argument how that standard applies to each issue in your case.
4. Strive for clarity and brevity in your writing. Judges and clerks appreciate concise briefs that are written in clear language and presented in a well-organized manner. Make good use of headings, subheadings and topic sentences to help the reader follow your argument. Don’t waste space by providing long string cites for obvious, uncontested propositions. If there’s no dispute about something basic like the elements of a claim, a citation to one recent binding case will suffice.
5. Proofread! The computer spell-checker is a helpful tool, but it has its limits. It can’t tell the difference between a public forum and a pubic forum or a statute and a statue (real examples, unfortunately).
6. Avoid appeals to emotion, name-calling or hyperbole. Overly emotional arguments are out of place in an appellate brief. You can pretty much guarantee that the judges and clerks will not feel as strongly about your case as you do and they haven’t been privy to all the slights that inevitably occur during contentious trial proceedings. Keep your tone professional and refer to opposing counsel and the trial judge in a respectful manner. Overuse of emphasis (SCREAMING IN ALL CAPS or overly highlighting important points) is just plain annoying and not very persuasive. Banish words like “clearly” and “obviously” from your briefs; if an issue was clear and obvious, it probably wouldn’t be on appeal.
7. Follow the general and local court rules. This includes “minor” rules like limits on font size, which will get noticed. After a year of clerking, I could distinguish between 11.5- and 12-point Times New Roman at a glance. As Judge Alex Kozinski once remarked, cheating on the page limit by tinkering with font size tells the court that you are willing to fudge a small procedural rule and, therefore, might also be the type of attorney who would break other, more important court rules.2 That’s not the impression you want to give.
8. Remember that your readers don’t know as much about the case as you do. Think of the judges and law clerks who read your briefs as generalists. Chances are they probably don’t know the intricate history of energy deregulation as well as you do. Clerks and judges appreciate briefs that provide a quick explanation of the broader context in which your case arises before diving into the details.
9. Know the record like the back of your hand and apply the facts to the relevant law. Appellate judges can figure out the law as well as you can, so what they really rely on you to help them understand is how the facts of your case dovetail with the applicable legal framework and justify the outcome you propose. This is your main task and is best done by continually integrating those facts into your discussion of the legal standards and showing the court, point by point, why your position is correct. If your argument section starts with a long, boring discussion of the law followed by a disconnected rehashing of the facts, you are missing a valuable opportunity to explain and persuade.
10. When in doubt at oral argument, fall back on your Moot Court 101 lessons. The basic advice you learned in moot court will serve you in good stead: A short roadmap that introduces you, your client and the main points you hope to make is truly helpful to your listeners. Try to give a yes or no answer before launching into a longer explanation so the judge knows where you stand. Never interrupt a judge. Make eye contact and moderate the volume of your voice to compensate for the courtroom’s acoustics (clerks often listen from a backroom or through an audio recording and they want to hear every word). Pay strict attention to the time limits or you’ll throw a snag into the day’s schedule. And remember that you are there at the judges’ invitation to answer their questions, not to give a pre-scripted lecture. n
Sarah Kaltsounis is an associate at Karr Tuttle Campbell. She served as law clerk to the Hon. Richard C. Tallman of the U.S. Court of Appeals for the Ninth Circuit from 2003-2004.
1 See Fed. R. App. Proc. 28(a)(9)(B); Ninth Cir. R. 28-2.5.
2 Hon. Alex Kozinski, The Wrong Stuff, 1992 B.Y.U. L. Rev. 325, 327 (1992).
