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Bar News - September 5, 2003 Appellate Judge Survey Offers Insight into Effective Advocacy By: David Lewis ATTORNEYS WRITE APPELLATE briefs to persuade appellate judges to rule in a client's favor. How best to accomplish that feat - just how to fit all of those facts and all of that case law together in a way that most benefits the client - is a critical question for every lawyer who appeals a decision. In January 2003, I mailed a survey to every state and federal appellate judge in New England in an attempt to understand how to better answer those questions. The New England appellate judicial survey was conducted by the Speakers Bureau of the Council of Appellate Lawyers, the first national appellate bench-bar organization. (The Council's Web page is at www.abanet.org/jd/ajc/calweb.html.) The survey achieved a 55.7 percent overall response rate. The response rates for New Hampshire, Maine and Vermont were 80 percent, 100 percent and 66.7 percent respectively. The survey was based on a similar one conducted in California by attorneys Charles A. Bird and Webster Burke Kinnaird. The results of that survey appear in the Journal of Appellate Practice and Process, 4 J. App. Prac. & Process 141 (2002)("Objective Analysis of Advocacy Preferences and Prevalent Mythologies in One California Appellate Court"). Methodology The New England appellate judicial survey consisted of 86 questions organized into seven separate sections regarding the advocacy preferences of appellate judges. The survey provided a Likert scale for responses consisting of five choices ranging from strongly agree (#1) to strongly disagree (#5) with no preference in the middle (#3). Mean scores as well as standard deviations were calculated. I will discuss and analyze a single question from each of the survey's seven sections as an example of the type of data the survey produced. I plan in the coming months to write a separate article about each section of the survey providing a more in-depth analysis of the survey's results. Section One: Structural Elements of Briefs The filing deadline for your brief is looming. The brief is written, but the summary of argument section is not. You figure that to save time you can quickly rewrite the issue headings, toss in some page numbers and the summary of argument section will be completed. You assure yourself that the judges will not mind. You just made a mistake, according to the survey data in New England. The survey's results indicated that New England appellate judges agree that issue headings should not simply be repeated in a summary of argument section. A low standard deviation for each court indicated that there was little disagreement. Section Two: Writing Style and Advocacy A college friend told me once that adverbs were his high school English teacher's pet peeve. My friend said that the teacher would take an Exacto knife and cut out each word that ended in "-ly" from their assignments. The teacher would then return their papers with tiny holes cut in them to be rewritten without the offending adverbs. Appellate judges do not seem as bothered by adverbs as my friend's teacher. The survey showed that New England appellate judges mildly agree that briefs should not use adverbs like "clearly" and "obviously," but that there are also a fair number of judges who have no preference. Section Three: Use of Authority and the Record Common wisdom says that maintaining credibility on appeal means (among other things) including specific page citations to the record and the case law supporting your argument. The data from the survey supports that presumption: the failure to include a specific page reference causes judges to become suspicious of whether the authority stands for the proposition asserted. The survey results indicated that state appellate judges - as opposed to the federal judges in the First Circuit - appear to support the conventional wisdom that the safe course to follow when writing an appellate brief is to include specific page references. The greater detail lets the judges focus on the substance of your argument instead of spending their time and energy questioning whether the information in your brief is reliable. The federal judges indicated that they had no preference on the topic, which is perhaps a reflection of their stronger institutional support of clerks and staff attorneys. Section Four: Typography of Briefs Attorneys borrow language or format from older pleadings all the time. Appellate judges, according to the survey, approve of adding some creativity to that old formatting, such as bullet points or other creative typography. Section Five: Physical Characteristics of Appellate Work Product Proofreading can be a chore. As mentioned above, fast-approaching deadlines can cause time-consuming tasks like proofreading or writing a new summary of argument section to be left undone. Perhaps it should come as no surprise - especially to anyone who has attended an appellate continuing legal education class and heard this complaint - that New England appellate judges feel that attorneys do not sufficiently proofread briefs before filing them in court. Section Six: Frequency of Certain Errors To determine frequency of errors, the judges were given three categories of cases - general civil, criminal and family - and asked to estimate the frequency in which an error appeared in each category as a percentage of the total number of those types of briefs they reviewed. While judges from all the appellate courts in New England and from the courts - state and federal - within the First Circuit disagree about how often briefs are submitted in need of editing and proofreading, there appears to be broad agreement among appellate judges in New England that in an appreciable number of cases, attorneys file appellate briefs in need of much greater attention to detail. Section Seven: Oral Argument I heard once from a friend that a law firm he practiced against taught its associates to never say they did not know the answer to a question; they were told to learn to think up a response - however outlandish - and say it. If true, the advice the firm was giving its associates is a bad idea on appeal in New England. The survey asked the judges if they appreciate a candid response such as "I don't know" when an attorney does not know the answer to a question, rather than the attorney's avoiding the question or answering non-responsively. The survey reflects both the judges' strong agreement with the statement and their lack of disagreement among themselves. When you are involved in oral argument - anywhere in New England - the best advice is to be candid even if it means saying that you do not know the answer. Conclusion The 2003 appellate judicial survey was conducted to make appeals a somewhat less complicated undertaking for attorneys who practice in the appellate courts of New England. Whether your practice is exclusively appeals, or you are before an appellate panel only occasionally, hopefully your oral and written advocacy will benefit from the analysis of the survey's results. David Lewis is an appellate attorney in Cambridge, Mass. His practice includes civil and criminal appeals in state and federal court. He can be reached at (617) 621-1551 or dlewis@appellateconsultant.com.
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