Bar News - May 20, 2015
Court News: Five Insights on Appellate Practice
By: Dan Wise
All five justices of the NH Supreme Court attended the NHBA CLE Appellate Advocacy program April 8 and participated in a question-and-answer session with the audience, providing some valuable practice tips and techniques.
Some of the especially practical advice came from Associate Justice James Bassett, the newest justice appointed in 2012, and the only justice who came directly to the appellate bench from trial practice.
1. Choose language carefully. Avoid using the phrase “abuse of discretion” when criticizing a lower court decision. Refer to it as an “unsustainable exercise of discretion.”
2. Save paper. Lengthy appendices add weight but not substance. Bassett admitted that as an attorney, he submitted large appendices that, as a judge, he finds unwarranted.
3. Consider “What next?” If the judges were to accept your view, be prepared to answer in oral argument how that ruling might be applied in other cases. “Consider the implications,” said Justice Robert Lynn.
4. Provide guidance. Bassett said judges welcome advocates’ advice as to whether a decision should be narrowly or broadly written. “Advise me where to draw the line,” he said.
5. Reserve time for rebuttal. If you are the appealing party, you can ask to save time for rebuttal. However, only use it if truly necessary to clarify a point or to highlight an issue not covered, not to repeat a main point. “It’s one thing to reserve time; it’s another to use it,” Bassett cautioned.
The Appellate Advocacy CLE program, including the question and answer session, is available for credit online or in other formats. Updated this year is the comprehensive, 294-page Appellate Advocacy Handbook, published by NHBA CLE. Also, a brief, practical guide, aimed at those arguing their first appellate case, is available free for download at www.nhbar.org.