THE ART OF appellate advocacy begins with deciding whether to appeal. It is a critical decision that should not be the product of counsel’s recollection of the proceeding nor his emotional "baggage" attached to it. Indeed, a thorough and objective review of the case is a prerequisite to initiating a successful appeal. Such scrutiny is time-consuming, detail-intensive, and demands that counsel view the prospect of an appeal through the narrow and discrete lens of the record. Before initiating the process, counsel should think long and hard about whether he can honestly separate himself from the adversarial battles and emotional investment tied to the case. If he cannot, new counsel should handle the appeal.

Although appellate "specialists" are not commonplace in this jurisdiction, it is a niche that is increasing in demand. During a recent conversation with a senior partner at a large Boston law firm, he stated that his firm does not hesitate to farm out appeals to so-called appellate "specialists." Other firms, including some in New Hampshire, have created appellate practice groups to handle this "specialized" work.

This article assumes that trial counsel will proceed with the appeal and offers advice on how to avoid certain pitfalls when drafting a brief and arguing before the court. At the outset, it is important to make it perfectly clear that the brief is an appellate advocate’s bible. Its importance to counsel’s case on appeal outweighs that of oral argument. Oral argument can be deeply persuasive – if done well – but it is the brief that formally presents the appeal to the court.

I offer the following advice to assist counsel in drafting a concise and persuasive brief:

As you know, there are rules dictating the format and content of the brief. See Sup Ct. R. 16, 17. The rules ensure uniformity in review and assist court personnel in efficiently processing all aspects of an appeal. Read the rules and follow them. Failing to comply with the rules may result in your appeal being "bounced" by the clerk of court or, at the very least, it gives the impression that you do sloppy work.

In United States v. Hart, 693 F.2d 286, 287 n.1 (3rd Cir. 1982), the Third Circuit noted that "[b]ecause of the inordinate number of meritless objections pressed on appeal, spotting the one bona fide issue was like finding a needle in a haystack." The court also cited the comments of a circuit court judge that:

Id. In my opinion, no more than three errors occur at trial that are ripe for appellate review. "Ripe" means that the issue is based upon the record, arguable under the appropriate standard of review, and can be reasonably seen to have affected the outcome of the case below. Of course, the golden rule of three is not ironclad; I simply caution counsel to think twice before adding additional issues that may muddy the water and minimize the few solid issues you have on appeal.

Trial counsel must be careful not to let a personal attachment to the trial court proceeding infect the appeals process. Too often, briefs are nothing more than impassioned summaries of closing arguments or an attempt to re-litigate the case. This simply does not get the job done on appeal. Don’t make jurists search for legal arguments amidst a sea of emotional rhetoric or within a rehashing of a motion hearing you believe you should have won.

I cannot stress this enough: Know thy record. This begins with an understanding that any fact that does not appear in the record cannot be relied upon on appeal. Therefore, when presenting or discussing facts in your brief, follow the rules (see point number 1) and cite to the record. See, e.g., Sup Ct. R. 16(3)(b), (d). Citing to the record demonstrates that you know the record and that it supports the claims you make in your brief. Further, it makes you physically check the record to make sure that what you thought occurred at trial actually did occur.

Make sure that all relevant portions of the record are submitted to the Supreme Court of New Hampshire. Under Sup. Ct. R. 13(2), the record will not be transferred to the court unless the court specifically requests that it be transferred. The "moving party" (appealing party) is responsible for "presenting to the supreme court a record sufficient for the court to decide the questions of law presented by the case." Sup. Ct. R. 13(3). Make sure that every portion of the record cited in your brief has been submitted to the court.

Presenting the facts and the law regarding an issue is pointless if you do not apply the appropriate standard of review. Many times, counsel will launch into a diatribe regarding the law and the particular facts of the case at bar, but fail to argue how the trial court’s findings were, for example, clearly erroneous or contrary to the manifest weight of the evidence. My suggestion is to start every argument regarding a particular issue with an enunciation of the standard of review. When you are finished drafting that argument, go back and make sure you have explained exactly why, under the appropriate standard of review, the proceeding below was flawed. If it is not crystal clear, fix it.

Drafting a quality statement of the case is difficult. Try to avoid the following: (1) omitting relevant facts; (2) presenting facts unsupported by the record; and (3) presenting facts that do not comply with the standard of review.

Omitting relevant facts gives the impression that you are hiding something from the court. I have already mentioned the importance of accurately citing to the record. Again, failing to do so properly can affect your credibility and evince sloppy work. As for presenting facts that do not comply with the standard of review on appeal, I offer an example. In an appeal from a grant of summary judgment, the facts are evaluated in a light most favorable to the nonmoving party. Unfortunately, counsel for the moving party usually ignores this mandate and only presents facts in his client’s favor. This leaves the court to assume that counsel does not understand the standard of review or his client’s position is untenable when viewed under the correct standard. Keep in mind that a good brief is trustworthy. Save your powers of persuasion for your legal arguments.

There is no set formula to a well-briefed legal argument. I can only suggest the following: (1) Lead with your strongest argument; (2) Use the strongest supporting law up front. Remember to research United States Supreme Court cases or other "law of the land" and avoid jurisdictional tunnel vision. Keep in mind the hierarchy of binding authority. If none exists, don’t be afraid to reference secondary sources and treatises; (3) Apply the law to the facts of the case. It is shocking how many briefs fail to do so; (4) Address the opposing party’s argument; and (5) Move on to the next issue.

If you are looking for some guidance in the rules, take a look at Sup. Ct. R. 16(6): "[b]riefs must be compact, logically arranged with proper headings, concise and free from burdensome, irrelevant, and immaterial matter."

It is worth stressing that you must get the law "right." Nothing destroys your credibility more than citing to a case that simply does not support your proposition or fails to advance it in any way. Justice Ruth Bader Ginsburg has said that a good brief "does not distort lines of authority or case holdings. It acknowledges and seeks fairly to account for unfavorable precedent."

A summary of the argument "should be a succinct, but accurate and clear, condensation of the argument made in the body of the brief. It should not be a mere repetition of the headings under which the argument is arranged." Sup. Ct. R. 16(3)(e) (emphasis added). The summary is best written after you have completed the argument section of the brief. Drafting the summary last ensures that it captures the essence of what you argued in the body of the brief. Sometimes arguments change during the drafting process and the summary, if drafted first, ends up at odds with the body of the brief.

Regardless of the immense time pressures facing practitioners today, there is no excuse for sloppy, unedited work. Try to get at least two colleagues to proofread your brief. I recall submitting a brief after asking my assistant to run a spell check. During the spell check, the computer suggested that "personality" be changed to "personality." Allegedly too busy to proofread the brief one last time, I approved and submitted it to the court. The brief persuasively argued that personality is not taxable as factory machinery! Luckily, the case settled soon thereafter and I avoided explaining this error to the partner in charge of the case.

In large part, appellate practice lacks the adversarial nature of the trial process. When proofreading, take out put-downs and indignant remarks aimed at the first instance decision-maker or opposing counsel. Perhaps it was cathartic to include them in the first draft, but they should be removed in the editing process.

The caseload facing most appellate courts is growing exponentially every year; however, this does not mean that the percentage of cases accepted is growing at a directly proportional rate. If your appeal has been accepted, you have cleared a very large hurdle. The appeal will be among the minority of cases that will be heard by the court. Therefore, do not squander the opportunity to succeed on appeal by submitting a sub-par brief.

In part two of this article, I will offer pointers regarding oral argument.

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