February 2016 Bar Bulletin
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Ten Underemphasized Aspects of Appellate Practice

By Erick Reitz

Last of Three Parts


This three-part article highlights 10 aspects of appellate practice, which, in my clerkship experience, merit extra thought by practitioners. The first part focused on standards of review and the second addressed several points on building an effective argument. In this final part, I discuss aspects of the appellate record and oral argument.

Make Your Appendix
Easily Navigable

The appendix is a court’s primary tool for accessing relevant portions of the record, so the primary objective is to make the appendix easy to navigate and cite.1 Appendices should be logically organized and clearly labeled. They should contain all record documents necessary to the appeal. Simple things, like including a table of contents in each volume or making the PDF copy searchable, can do a lot to aid navigation.

Appendices should provide every document necessary to decide the appeal. At minimum, this means every page of record cited in your brief, but it also means the content necessary to provide context to your record citations. For instance, additional pages of a deposition transcript often lend context to the crucial question, and a “Definitions” section of an insurance policy can help explain the focal provision.

However, try not to overdo it here, because unless the court asks you to include everything, a comprehensive reproduction of the filings defeats the point of having a focused collection of documents in the first place.

Cite the Record Clearly
and Describe It Accurately

Appellate judges and clerks are newcomers to your case, so the initial task of any brief is to pull together the most important parts of the record into a workable starting point as your audience gets up to speed. It is often unfeasible for judges and clerks to read every page of an appendix, so their initial impression of the case is necessarily shaped by what the parties highlight in their briefs and how they highlight it.

This is an opportunity, but if the court is ever to accept the facts you highlight, it must be able to find them in the record. Always err on the side of providing record citations for any assertion about the facts of the case — we sometimes had to ignore naked factual statements that could never be verified in the record.

You should also do everything you can to make each citation as easy to follow as possible. An organized, well-
labeled appendix goes for nothing if you fail to cite the appendix volume and page number. If all you provide is the trial document’s title (e.g., “Smith Depo. at 7” or “Defendant’s Motion for Summary Judgment, Ex. A at 4”), you will not make a friend of the clerk who will waste her time digging through the appendix or the trial court’s docket trying to find the relevant document. Worse, you run the risk that it will not be found at all.

When drafting your brief, be sure to convert your trial court record citations over to the conventions of the appellate court. For example, if the court is working from an appendix, this could be as simple as “App. I at 266” to represent page 266 of the first volume, or it could go a step further to also include the docket number: “App. I at 266 (CM/ECF Doc. 16 at 4).”

You should expect judges and clerks will actively check cites and read through uncited portions of the record. Though attorneys play an important role in guiding this process, the court will construct its view of the facts from the record itself. An attorney should therefore weave a favorable story from the evidence, but should also recognize that a record is only so malleable. Some briefs we saw took this role too far by recharacterizing record evidence under the apparent belief that these versions would carry through simply because they were accompanied by record cites.

Do not stretch the record beyond recognition. Assertions at odds with the cited documents are begging to be ignored as puffery or, worse, an ill-
conceived attempt at deception. My advice: Characterize the record favorably, but expect citations to be source-checked and assertions to be scrutinized. Too many “misses” will take a heavy toll on your credibility.

Use Oral Argument Wisely

I have heard many judges say that oral argument does not often win an appeal, because it is usually the brief that does the job. However, oral argument can be a valuable opportunity if it adds to your written submission rather than simply summarizing the arguments in your brief.

Your brief is the place for detailed discussion, so your prepared argument should step back from the trees and remind the court of the forest, giving your appeal a unifying message. This may highlight a few crucial facts or points of law, but this should essentially provide a sound bite for your brief.

Oral argument is perhaps most valuable when you can establish a dialogue with the judges. When a judge poses a hypothetical, asks a question or offers a comment, she is providing a window into what she considers important. The attorney who recognizes this in the moment can build off a judge’s agreement, alleviate her concerns or clear up her confusion. On the other hand, the inflexible attorney, who works to steer back to a scripted argument without addressing questions from the bench, is wasting a golden opportunity.

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