THE ETIQUETTE OF APPELLATE PRACTICE[Posted September 25, 2009] A couple of years ago, I attended a program sponsored by the Norfolk and Portsmouth Bar Association, at which Justice Don Lemons gave a speech on professionalism in the practice of law. The audience wasn’t appellate lawyers – I was probably the only one of those in the crowd – but the local bar as a whole. He spoke about the difference between ethics and civility. He regarded ethics as being the minimum standard of conduct necessary for our craft, and civility as a much higher aspiration.
In that sense, this essay is probably overdue. I have written in the past about appellate practice with an eye toward giving trial lawyers, and those with little appellate experience, a sense of the minimum skills and knowledge that are necessary to achieve professional competence in an appellate setting. I have also expressed my views about some of the finer points of appellate practice; my target audience there is the practitioner who wants to do more than just avoid doing something foolish in a brief or at the lectern. But I don’t think I have ever focused on what sets the truly outstanding appellate practitioner apart from those who are merely effective.
That something is civility, and it’s based on an etiquette that’s unique to appellate practice. In this sector, we are happily free from the nastiness that I understand pervades much of trial practice, at least in some circles. There are no wars of words at depositions, because we don’t conduct them; no last-minute hearing notices without consultations on available dates, because appellate courts don’t grant hearings on motions; and no name-calling at all. Even the inevitably rude, but often necessary, practice of standing to interrupt your opponent to register an objection is wholly foreign to the appellate world. Our bar is very small and is correspondingly very collegial; we treat each other like friends, even when we’re on opposite sides of the case.
Here are some of the little (and not-so-little) things that make it a pleasure to be an appellate lawyer. Most of these are founded in civility, and some are just the little niceties that happen during the appellate process.
Shaping the appendix
Once an appeal is awarded, the rules require that the lawyers designate the contents of the appendix. (See state Rules 5:32 and 5A:25, plus FRAP 30.) There are two things to remember here. At the lower level of professionalism, you should always avoid unnecessary appendix designations. The Fourth Circuit says in Local Rule 30(a) that it will sanction you for including unnecessary materials. The state appellate courts don’t convey that overt threat, but they do reassure counsel that omitting something from the appendix won’t destroy your appeal; the court can always “consider other parts of the record” in evaluating the case.
Nevertheless, no appellate court likes to face the prospect of an unnecessary multi-volume appendix, and jurists understandably resent it when you file an enormous one, only about fifty pages of which are truly germane to the appellate issues. Over-designating may seem like sensible defensive lawyering to you (“I can get sued if I leave something out, but I can’t get sued if I put everything in”), but it isn’t professional; it betrays a lack of confidence, and it presents an unreasonable imposition upon the appellate jurist’s time. One quick caveat: Rule 5A:25(h) specifies that the Court of Appeals doesn’t have to look back to the record for materials that aren’t in the appendix. The Supreme Court doesn’t have a parallel to this rule, so you might need to be a bit more careful in the CAV.
Second, in preparing the appendix designations, it’s always a good idea to pick up the phone and call your adversary to talk about the case. By the time you’re putting that bound volume together, you’ll both have a good idea of the appellate issues, so you can eliminate extraneous or marginally-relevant materials. Remember that you’re not required to agree upon the designations – each side can designate materials without the consent of the other – but you may be able to reach certain agreements to limit over-inclusiveness.
Since credibility with the court is a huge factor in how your arguments will be received, it is unwise to get off on the wrong foot by designating parts of the record for the joint appendix that are entirely unnecessary to resolving the appellate issues or conversely, by not including parts of the record that are essential to resolving the issue. For example, if the issue is sufficiency of the evidence, the sentencing hearing doesn’t need to be designated. On the other hand, I have learned of a case where a Batson issue was raised regarding the selection of the jury, but the voir dire was not included in the appendix. This is a matter of minimal competency, not civility, but the effect of this omission on the lawyers’ personal credibility was, to say the least, damaging.
When you see footnotes like the following appearing in the opinion, it is a clue that the court was underwhelmed by the fact that counsel spent very little effort in crystallizing the record needed for appellate review:
“Efficient appellate review of this case has been hampered due to negligent preparation of the joint appendix, based entirely on appellant’s designation. Duplicate copies of documents are included unnecessarily in the appendix.”
Washington v. Anderson, 236 Va. 316, 322 (1988)
“The joint appendix prepared by the parties in this appeal contains an unwarranted amount of material not germane to the issues raised in the appeal in violation of Rule 5:32(g).”
Asplundh Tree Expert Co. v. Pacific Employers Ins., 269 Va. 399, 411 (2005) n.1.
Almost no one has written about motions practice in the appellate courts that sit here in Virginia. Yes, you can file motions (see Rules 5:4, 5A:2, and FRAP 27) in appellate courts. I have two suggestions with regard to them.
First, before you file a motion, call your adversary and let her know about it in advance. You should ask for her consent to the relief you will be requesting. If she says yes, include a paragraph in your motion that says, “Counsel for the appellees has been advised of the intended filing of this motion, and has indicated that she consents to the relief requested.” (The Fourth Circuit’s Local Rule 27(a) requires this certification; the state appellate courts’ rules may soon include it if the Supreme Court adopts the ARAC recommendations.) Yes, you might lose some small tactical advantage that you might otherwise gain by hitting her with a surprise motion; but if your motion is so shaky that you need that much of an edge in order to prevail, you should rethink the wisdom of filing it.
Second, if you receive a phone call like the one I just described, say yes. As long as the relief requested is reasonable and won’t unfairly prejudice your client, I strongly urge that you (in the words of the Principles of Professionalism) “agree whenever possible to opposing counsel’s reasonable requests for extensions of time that are consistent with [your] primary duties to advance [your] clients’ interests.” In my dealings with other appellate practitioners, I cannot recall a single instance in which a request for something like a few extra days’ time was refused; we simply would not consider saying no to one another over something like that. Obviously, you’re not going to agree to make a sacrifice that will cost your client dearly; but if your opponent is a professional, too, then he’ll know not to make such a request.
Taking this approach is the professional thing to do of course; but there are tangible benefits as well. A motion that the court knows is unopposed is much more likely to be granted, and the jurists will appreciate, and remember, counsel’s efforts in reaching an agreement. If civility isn’t enough of its own reward for you, here’s an aspect that can appeal to the more mercenary part of us.
The first key here is something I’ve written about before. There is a temptation, when you’re crafting a petition for appeal, to cast aspersions at the trial judge who made the ruling that you’re trying to get reversed. That’s because we sense that if the appellate court agrees with us that this judge is a damned fool, it will be more likely to earn you a reversal. The exact opposite is true: Making an ad hominem argument against the person who made the ruling is not only bad form; appellate jurists will resent it, and will resent you for making such an attack.
Instead of trying to cast the trial judge in a bad light, focus on what’s wrong with the ruling. Appellate courts don’t review trial judges; they review trial judges’ rulings. That’s where your focus should be as you craft your arguments.
When you’re writing your petition, do you ever feel the temptation to name the trial judge? Perhaps you sense that her honor has enough frequent flier miles from previous reversals that the judges or justices will automatically be more inclined to grant a writ and reverse, just because of who she is. Trust me; that doesn’t work, either. One trial judge (now retired) down here in Tidewater used to brag that he was the most-reversed judge in the Commonwealth. This statement came in the context of a trial many years ago, in which I was losing ruling after ruling; I was confident that at least some of my arguments should have gained traction. And yet, in order to get a writ in the appeal (which ultimately proved successful, further enhancing his reversal rate), I still had to focus on what he had done wrong; not on who he was.
The best way to avoid this tendency is to refrain from using the trial judge’s name in your pleadings (unless it’s absolutely necessary, as it might be when two different judges participated in different stages of the case). If you refer to “the trial court” instead of “the trial judge” (and certainly not, “Judge Johnson”), your argument will naturally flow toward the ruling instead of the person who made it.
Next, you should treat your adversary the same way. I don’t care how richly the pompous, ignorant rascal deserves a good bashing; don’t do it. If your opponent has engaged in improper and unethical conduct, there is a tribunal for such grievances: It’s called the State Bar Disciplinary Committee. The appellate court doesn’t want to hear about how your opponent was mean to you; they aren’t in that business (at least, not until a bar complaint wends it way to the Supreme Court). Keep your appeal focused on the reasons why the ruling is wrong, and leave out all the stuff that’s designed to portray your adversary as a crooked lawyer who doesn’t deserve to win. If he does something truly egregious, remember that appellate courts are not shy about sanctioning unprofessional behavior directly (for a famous recent example, see Taboada v. Daly Seven, 272 Va. 211 (2006)) or in reporting misconduct to the Virginia State Bar, and such lawyers have little or no credibility with most Robes, at any level of court.
A word about length, one of my primary topics in appellate sermons. I have preached that shorter briefs are more persuasive, and that fact should be enough to commend them to you. But shorter briefs also convey the message that you have taken the time to pare back your argument to the essentials. To the point of this essay, they also respect the limited time that’s available in the life of an appellate jurist. If you were one of the judges of the Court of Appeals, would you want to pick up a page-limit stretcher, or a concise, 14-page brief? Remember that you’ve got a big stack of other appeals, and you need to read and digest all of those, too. This is a matter of professionalism, not merely one of persuasive force; every judge and every justice knows that it takes more time and effort to produce a concise brief than it does to throw in every argument you can think of during a brainstorming session with your colleagues.
In the end, this will pay dividends on multiple levels, only one of which is professionalism. Appellate judges are well aware that it’s faster and easier to write long than short. But the extra effort put into editing and wordsmithing – the primary process in the appellate lawyer’s skill set – will make the final product easier to digest and understand, and it will inherently be more persuasive.
The lessons I stated above, about how to refer to your trial judge and opposing counsel, apply with equal force when you’re standing at the lectern. This can be hard to remember, since (especially in response to questions) you will often be speaking somewhat off-the-cuff.
Imagine you’re sitting at the counsel table while your opponent is at the lectern. During his argument, he tells a whopper – a statement that finds no support in (or that is directly contrary to) the record, or a clear misstatement of what Smith v. Jones really stands for. You don’t want the court to assume that you agree with what the lying scoundrel says, and you want to convey your moral outrage at the fact that he’s playing footsie with the truth. What do you do?
Obviously, you can’t stand up and object; the lectern belongs to him alone until the red light comes on. Many lawyers believe that the next best thing is to register their outrage silently, by scowling, shaking their heads, or openly and obviously displaying astonishment. Maybe if the justices notice, they’ll know that something is amiss, and one of them might even interrupt the opponent with a tough question.
If this is your line of thinking, you need to revise it. The right way to handle this situation is to calmly make a note of it, and then point out the error when it’s your turn to speak, preferably with a page citation to the record or the caselaw. This is one instance where a good poker face comes in handy. The unprofessional approach described in the previous paragraph is likely to be viewed by the justices as a distraction. You won’t make points with the court; you won’t harm your adversary’s case; but you will impair your own ability to advocate your case effectively.
So what do you do if your opponent has the last word, and in that speech, he tells a whopper that isn’t immediately obvious? You can’t ask for a chance to call him on it, but if his misstatement is demonstrably wrong, such that a page citation to the appendix will correct any misperception the court might have, there is one thing you can do. Write a letter to the court, care of the clerk and copying your opponent, wherein you calmly and accurately quote the misstatement (at least in the Court of Appeals, oral arguments are digitally recorded now and are available for anyone to listen to within a few days) and then quote the correct information and cite to the appropriate source where it can be found. The shorter and more dispassionate this letter is, the better; no four-letter Anglo-Saxon words allowed.
In addition to respecting your trial judge and your opponent, there’s one other group you can be kind to: The appellate court. The easiest ways to do that are to arrive at the lectern prepared, answer questions fairly, and close promptly as soon as you finish your comments or as soon as you run out of time, whichever happens first. I emphasized that last clause because it’s important. If you run out of time before you run out of argument, you’re obviously done; join the legions of lawyers who weren’t able to get in every argument they wanted to. If you run out of argument before you run out of time, please respect the court’s time, and politely close your presentation. Just because you have more time doesn’t mean that you have to use it by adding a few more thoughts. It is good form to conclude early if you can.
I have written extensively in the past about how to answer questions from the bench. Many of those lessons (for example, always give a direct answer; offer an explanation if necessary, but only after the direct answer; never, ever try to talk over the jurist’s question) also belong in an essay about appellate etiquette, but I won’t repeat them here.
At the conclusion of an argument on the merits, when both sides argue (as contrasted with a writ argument, where only counsel for the appellant gets to speak), I always walk immediately over to my adversary and shake his hand, offering a quiet, kind word about his argument. I never dawdle, because (at least in the Supreme Court) as I’m doing this, the Clerk is calling the next case. If you choose to do this, do it the right way: Make eye contact as you shake hands, offer a smile, and then get out of the way of the next litigants.
I suppose that it’s possible that some observers might view this as sucking up to the court. After all, everybody in the courtroom can see you doing this, and you might be perceived as being Goody Two-Shoes, Esq. But if you’re sincere about it, you have nothing to lose, and you might even develop a friend out of this fleeting exchange. Remember that most lawyers find the experience of appellate oral argument to be stressful, and a kind word after a stressful encounter can be an extraordinarily gracious personal touch.
Let’s talk next about a different kind of handshake. After every argument in the Fourth Circuit, after most arguments in the Court of Appeals, and after the last argument of the day in the Supreme Court of Virginia (merits arguments only), the jurists will come down from the bench and greet counsel, one by one. (I sincerely wish that the justices would do this after every merits argument. I suppose the reason why they don’t has to do with time constraints, but in my humble view, the court should rethink that policy, and adopt this simple, kind gesture toward counsel.)
The first, and most obvious, lesson here is to be ready for it; don’t be packing up your briefcase and walking out the door when they come down into the well of the court. (Imagine someone walking away from you as you offer to shake hands, and you’ll know what I mean.) The best way to handle this is to allow each jurist to greet you, and then respond simply and appropriately. This is not the time to try to bring home your best argument, or to try to raise one that you didn’t have time to make, or to call your opponent a lying sack of putrescence for having misstated the facts in his rebuttal, when you were powerless to respond. The argument is over; this is an exercise in social graces, and you need to handle it with quiet confidence and respect.
After the decision
I have two final bits of advice, and I know before I set them out here that some lawyers will, by virtue of their personalities, be unable to follow them.
If you win, congratulations. You’re allowed to celebrate. Just do so inwardly, or privately with your client or your partners or your family. Do not do so publicly, and don’t berate or belittle your vanquished opponent. Do you remember the experience of losing? Okay, let’s turn it up a notch: Do you remember the awful feeling of losing, and then having your opponent gloat publicly about how thoroughly he kicked your posterior? Well, you should resolve never to inflict such a feeling upon a fellow member of the bar. As we in the small world of appellate practitioners know, there will be another case, and another one after that; we don’t belittle our friends, and neither should you.
On the other hand, suppose you lost. I strongly urge you to pick up the phone, dial your adversary, and offer her your congratulations. It won’t be a fun experience; I never enjoy placing such a call, but I never fail to do it, either. It’s part of what makes civility so mutually rewarding. Your adversary will know that you didn’t have to do this, and she will think all the more highly of you for having done so. (If you’re still feeling result-oriented pain over the loss, you can silently start planning to win the next appeal, so she’ll have to call you.)
I gave a short impromptu speech to the Virginia Beach Bar Association back in January on the topic of professionalism. Since I had literally zero time to prepare, I shamelessly stole a couple of comments from Justice Lemons’s speech to the Norfolk/Portsmouth Bar. I added that I believe that professionalism is based on civility, and that civility, in turn, is nothing more than applied kindness. Most lawyers don’t think of kindness as a quality they need to cultivate in order to be a better practitioner; I think it’s essential.
Appellate practice is one area in which it’s emphatically possible to be simultaneously gracious and effective. Indeed, I don’t think it’s possible to have long-term success in this field without respecting the rules of appellate etiquette; Darwinian factors will eventually winnow out those lawyers who think that the only path to career success lies in Rambo tactics. I hope to be able to carry this message to the trial bar as well; but for now, I’ll be content if everyone in the appellate bar adheres to these principles.