THE TOP TEN WAYS TO LOSE YOUR APPEAL

This essay is an adaptation of a presentation given to the Local Government Attorneys of Virginia’s annual meeting in Norfolk in October 2004. The lecture focused on the process of making an appeal to the Supreme Court of Virginia, so comparatively little treatment was given to the Court of Appeals of Virginia or the Fourth Circuit. Many of the points raised herein can, however, be applied in any appellate court.

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I will begin by assuring you that I am keenly aware of the fact that I am the last speaker of the afternoon. In my experience, a speaker in this position had better not be boring, or else the audience’s attention will start to wander toward dinner and this evening’s gala. So I promise to keep it interesting.

Anyone who has attended more than one CLE presentation on appellate advocacy will have noticed a great similarity between the programs. The speakers, all generally very accomplished at their craft, seem to give the same advice over and over again. “Do this that way; don’t do that this way; read and reread the rules; condense your argument . . .” After a while it can become a bit repetitive. They all seem to have the same ideas about preparation, briefwriting, oral advocacy, and the like. Eventually it becomes, well, . . . boring.

In order to keep the promise I made above, I have decided not to follow the usual approach. You didn’t come here seeking boredom; otherwise you’d be next door, at the Land Use Update presentation. I have therefore decided to be different. To paraphrase Scarlett O’Hara, “As God is my witness, I’ll never be boring again!” Instead of discussing how to win your appeal, I have decided to focus on the many un-boring ways you can lose. That promises to be a lot more interesting.

As for the format, I decided to give a voice to all those people who, through the years, have told me that I resemble David Letterman. Accordingly, in tribute to Dave, here are “The Top Ten Ways to Lose Your Appeal.”

# 10 – Regard assignments of error as optional.

The Rules of the Supreme Court of Virginia are very specific on requirements for what must be included in your briefs. For example, you have to have a statement of facts; an argument; a certificate in a particular form; and several other things. But the rules single out one requirement for special treatment. Rule 5:17(c) provides that “If the petition for appeal does not contain assignments of error, the appeal will be dismissed.” This is the appellate version of the death penalty, and presents an easy way to lose your appeal quickly, so you won’t have to bother with the subsequent stages of the appellate process. There is no clemency, and no mulligan is allowed. (The Court of Appeals of Virginia requires questions presented instead of assignments of error.)

# 9 – Miss a deadline.

This one presents you with lots of opportunities to lose your appeal, as you make your way through the process. You might want to take a look at the listing on this site of Supreme Court Deadlines to see all the chances you’ll have. In truth, only four of them are mandatory and jurisdictional. (The Boring People, by the way, regard all of these deadlines as mandatory; they don’t cut themselves any slack whatsoever.) But if you keep missing deadlines, eventually you’ll step on a landmine, and lose.

Most appellate judges would regard these first two as the # 1 and # 2 Ways to Lose. After all, these two can get you kicked out of an appellate court in short order. But that’s too prosaic, and Boring, an approach. Any second-year associate can miss a deadline. We are looking for more poetry, for more subtle and creative ways of losing. Accordingly, these two make the list, but just barely.

# 8 – Criticize the trial judge (preferably by name).

Let’s face it – the justices hate this, whether you do it in your brief or in oral argument. For reasons inspired in part by the camaraderie they feel with fellow judges, the justices don’t like it when you point at your malefactor below and personalize your attack.

The Boring People recognize this, and do two things. They refer to “the trial court,” without naming the court or the judge, and they give a degree of deference to the judge, even while arguing that he was wrong. But this is too hard; you’ll find that it’s much easier, and much more satisfying, to argue forcefully, “Judge Jones made this ruling, Judge Jones got it wrong, and [assume air of majesty here] JUDGE JONES needs to be reversed!”

This method probably won’t lose your appeal in and of itself, but it will certainly alienate the justices, and will help you along the path to a loss.

# 7 – Give ‘em your best jury argument.

After all, there are seven of them, just like most of the juries you’ve captivated with the power of your passionate oratory. There are several ways to do this. Among the most prominent and effective:

    1. Use highly charged emotional arguments. If you just cite caselaw, your opponent may or may not out-research you. But no caselaw can trump good old fashioned righteous indignation, or overwhelming sympathy – and you know how to give it to ‘em.
    2. Reargue the facts. Try to convince the court that the jury got it wrong when it believed the Bad Guy’s testimony instead of your client’s. The Virginia Reports are simply stuffed with opinions holding that the Supreme Court won’t revisit the factfinder’s credibility determinations. This is thus a good time-waster, and will avoid that uncomfortable pregnant pause at the end of your remarks, when you have time left and are facing a grim and silent court.
    3. Use humor liberally. Comic relief will do wonders for your loss rate in the Supreme Court. You may be surprised to learn the Boring People’s take on this tactic. They tend to regard humor as you would regard high-powered plastic explosives. Used in very small quantities, by an expert who knows what he’s doing, it can be a very effective tool. But if it’s used liberally, or by someone who doesn’t know what he’s doing, the inevitable result is that some unfortunate lawyer is going to get his fool head blown off.

# 6 – Appeal everything.

Discretion is Boring. It makes for difficult choices. When you’re in a pressure-filled situation like the appellate process, you don’t want to face difficult choices.

There are two ways to appeal everything. The first is to appeal every adverse judgment, regardless of appellate merit. That will get you lots of appellate losses; even your arch-enemy on the Circuit Court is going to get it right most of the time.

The second is to include every possible assignment of error you can think of. Many lawyers do this, not in order to lose, but to avoid concerns about malpractice. They reason that if they are selective with the issues they choose to appeal, they might get a bar complaint for having omitted a potentially winning issue. But if they include all seventeen issues in the petition, no one can possibly say that they left anything out. They also figure that by including everything, they are multiplying their chances of winning on at least one issue.

The irony of this is that it is the exact opposite of the way most appellate judges view the issue. For example, in an excellent appellate treatise written by Senior U.S. Circuit Judge Ruggero J. Aldisert,

Winning on Appeal 2d ed. (NITA 2003), the following “litmus test” is offered, giving the number of issues in a brief and the judge’s likely reaction:

Three

– Presumably arguable points. The lawyer is primo.

Four

– Probably arguable points. The lawyer is primo minus.

Five

– Perhaps arguable points. The lawyer is no longer primo.

Six

– Probably no arguable points. The lawyer has not made a favorable initial impression.

Seven

– Presumptively, no arguable points. The lawyer is at an extreme disadvantage, with an uphill battle all the way.

Eight or more

– Strong presumption that no point is worthwhile. [The first edition of the book adds the following admonition: “To the lawyer: Go home. Do not pass ‘Go.’ “]

# 5 – Push the page limits.

Page limits for briefs are set forth in the rules. For example, you have 35 pages for a petition for appeal, and 50 pages for an opening brief of appellant. Toward the end of losing your appeal, you should begin by regarding these are targets, not merely limits. You should fill every page, if at all possible.

The Boring People write short briefs, reasoning that these are much more likely to be actually read by the justices. (This, in fact, is untrue; the justices read all briefs. But they’re more likely to enjoy reading the shorter ones.) Oddly, it takes longer to write a short brief, so filing a longer, losing brief is thus likely to take up less of your valuable time.

But the title of this section is “Push the Page Limits,” and to really maximize your chances of losing, you can cheat on the rules. Some of the more common mechanisms that have been used include:

    • Filing a 41 page petition for appeal. This is probably too obvious; there is no poetry in this, and you are virtually certain to get caught.
    • Single-spacing your brief, instead of the required double-spacing. This is also far too easy to spot.
    • Using ½” margins. This is getting warmer, but it’s still easy to see.

Some subtler ways that have been used:

    • Include two page 18’s and two page 26’s in your brief. This gives you a full two free pages with which to lengthen your argument. If you use this, then of course you should bury the repeated pages in the middle of your brief; don’t use two page 35’s, which is likely going to be noticed.
    • Use 10-point type instead of the required 12-point. They probably can’t tell the difference, and this gives you more words on each and every line. (But don’t try this one in federal court. The federal rules require 14-point type, which is big enough to be read from across the room.)
    • Put long portions of your argument in footnotes. You can single-space those; there is almost no limit to the extra words you can use by this device.

# 4 – Assume they’re decisionmaking machines.

If you’re uncomfortable with approach #7 above, you can go to the opposite extreme, and argue as though you’re addressing seven Mr. Spocks – pure logic, no passion. This enables you to ignore the human element of your case.

This is a subtle method indeed. The danger is that you may accidentally win an appeal now and then by focusing on cold, distilled reason alone. But all logic and no passion makes Stevie a dull boy; this approach is likely to lose your audience eventually. The most effective way to implement this strategy is to read your argument, verbatim, to the court. This also avoids troublesome eye contact with the justices, who are probably only glowering at you anyway.

# 3 – Duck the court’s questions.

Envision the scene: You’ve prepared this marvelous, persuasive oration. You are overcoming your nerves, and are delivering your speech to the court. Then one of the justices just butts in with a question, on a completely different topic from the one you were covering. Now, is this rude, or what? Unfortunately, there is no escaping such interruptions; anyone going into an appellate court has to know that they’re coming. The question is how to evade them.

As you might imagine, the Boring People take a different view of questions from the bench. They actually hope they get questions; they want to get interrupted. They regard oral argument as a conversation, not as an oration, and a question from the bench tells them what’s on the mind of at least one justice.

But if you really want to stick with the script you have prepared, questions can be troublesome. Lawyers, never short on finding creative ways to evade what they don’t want to confront, have devised several useful methods to duck the court’s questions. A few of these follow; these are the appellate version of the

Darwin Awards , which are given out annually to those persons who contribute the most to the human gene pool by removing themselves from it, usually in novel and foolish ways.

    1. There’s the one where, in the middle of a presentation on one issue in the case, a justice interrupts and asks a question on a different part of the advocate’s argument. Not wanting to interrupt the flow of his speech, the lawyer responds pleasantly, “I’ll get to that point later, your Honor.” The reply comes speedily back, “Counsel, you are there NOW.” (This one actually occurs on a regular basis in appellate courts across the nation.)
    2. A justice poses a hypothetical question, and asks the lawyer how the case should be adjudicated under those circumstances. The lawyer is happy to be able to offer a speedy reply, and he does: He states, with a smile, “Those aren’t the facts of this case, your Honor.” (Well, she already knew that; that’s why she asked a hypothetical question.)
    3. This one took a lot of guts on the part of the advocate – when an out-of-planned-order interruption and question came up, one lawyer instructed the questioning justice, “That point isn’t as important as the point I was making, your Honor.”
    4. Finally, an advocate who was given a particularly troublesome question didn’t seem to know how to answer, so he did the best he could: “Why would you ask that, your Honor?”

# 2 – Read the rules, once.

I know you’re busy. You have a full caseload, and you don’t need to be spending any more time than absolutely necessary on this appeal you’re handling. I recognize that you’ve read the rules before, and lawyers are smart enough to remember what they have read once. Right?

You don’t have to waste time doing what the Boring People do. This will sound preposterous, but it’s true: They actually get out the rules and read them, each and every time they get an appeal. Not the whole set of rules at once, of course, but they read those portions of the rules that relate to whatever stage of the appeal they happen to be in at the time. At each new stage, they get out the book and read again. It’s a tremendous investment of time, and one that shouldn’t be necessary for anyone who is smart enough to be a lawyer. Just think of all the extra work you can get done on your other cases . . .

# 1 – Squander your ethos.

In the dim recesses of your memory, you may recognize this term from a speech course you once took. Ethos is one of the three forms of persuasion identified by Aristotle in his great work, Rhetoric . The others are pathos and logos. Pathos is an emotional appeal (#7 above); logos is an argument based solely on logic (#4 above); ethos is where the argument rests upon the personal credibility of the speaker.

Given those descriptions, you may believe that ethos is the red-headed stepchild in this group. Emotion and reason are traditionally viewed as very powerful tools of persuasion; basing an argument on personal credibility is not likely to stand up to flaming passion or cold, hard logic.

But you would find opposition in your view, from no less an authority than Aristotle himself, who regarded ethos as the most effective form of persuasion. You would also cross swords with one of the finest teachers of lawyers of our times, former U.S. District Judge

Herbert J. Stern , who asked, in another context, “Would you rather be strong on the facts, be strong on the law, or have Abraham Lincoln as your lawyer?” For most of us, this question is answered instantly; almost all of you, given this choice, quickly decided, “I’ll take Abe, thanks.” The reason for this is simple; you recognize that no matter who the decisionmaker is – judge, jury, arbitrator, or appellate panel – that decisionmaker will be saying to himself, “Honest Abe wouldn’t lie to me.”

If personal credibility is thus so important to the Boring People, you can make considerable headway toward losing, by squandering yours. There are limitless ways to do this, but the most effective are:

    • Playing footsie with the facts;
    • Mis-citing cases;
    • Failing to mention and address controlling, adverse authority; and
    • Making excuses for weaknesses in your case (“Your Honor, I didn’t try the case below; that mistake was made by the trial lawyer.”).

But why is this #1? It’s because of its ruthless efficiency. When you squander your ethos, and the court comes to recognize that it can’t trust you, you won’t just lose your appeal; you’ll lose your appeals. A reputation as someone who cuts corners, or is willing to mis-state the record, will not be forgotten by the time your next case is called, even years later. They will remember, and they will hold it against you the next time. A reputation for honesty is a fragile thing, easily broken and very difficult and time-consuming to repair. You can thus save yourself considerable time in the losing process, by poisoning your own reputation. You’ll reap the benefits for years to come.

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Quotations from Winning on Appeal are copyrighted 2003 by the National Institute for Trial Advocacy, and are used with permission. Further reproduction is prohibited.

Readers who enjoyed this essay should also see “ The Wrong Stuff,” by Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit.  I am very grateful to Judge Kozinski for his encouragement to me, and for giving me permission to post this link to his very enjoyable essay.