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Bar News - January 17, 2003 Views from the Bench: Advice on Appellate Advocacy CHIEF JUSTICE BROCK and Associate Justice Duggan offered tips on how attorneys can more effectively advocate before the appellate court. Both, in essence, said that "less is more" is often the rule of thumb in appellate advocacy. On the briefs: Lawyers sometimes go too quickly to the dispute in their writings. "When we read the briefs, that's when we need all of that factual and procedural information," said Duggan. "We are figuring out what the case is about -cases that we might have screened and accepted months ago-but now we are looking again at what are the facts, how did this case get here. Before you start arguing and pointing out what's wrong, we need the facts." "Then there is the kitchen sink problem," he added. "I've read briefs where there are eight to ten issues raised in a brief - are you telling the court that there were eight separate judicial errors made in that case? When I was an appellate lawyer, I rarely filed a brief with more than two or three issues. Even raising four to five issues in a serious criminal case was rare." From Chief Justice Brock's viewpoint of nearly a quarter-century as an appellate judge, "briefs" are getting too long- fattened by appendices of irrelevant material. "There's a lot of unnecessary paper being generated," Brock said. "One of the changes I recommended was a provision to have the attorney certify that every document is relevant to an issue raised in the appeal. In practice, that's difficult to enforce. I know that from the attorney's point of view, they are not certain what the other party is going to raise, but if there is any appellate rule that has been violated consistently, that's the one," he said. On argument: Based on his experience as an appellate attorney and now a judge, Duggan said, "I find there is a surprising number of lawyers who insist on walking the court through the facts or the procedure. Many lawyers assume we don't read the briefs. We know what is in the briefs. After the second day of oral arguments, when we have had maybe 10 or12 arguments under our belt, it helps to refresh our memory a bit, but it is a waste of time to walk us through the facts." "You can try to do too much in an oral argument," Duggan added. "In 15 minutes, you can only touch on the most important points, restating the strongest arguments for your side." Brock advises appellate lawyers to be economical in presenting their oral arguments: "The attorneys need to spend less time on the facts. Let us know up front what issues are the most important, and then answer our questions simply and directly."
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