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Bar News - September 18, 2009

Appellate Law: Appellate Litigation: Keys to Effective Advocacy


Theodore M. Lothstein
Many lawyers, including some highly-experienced trial lawyers, view with trepidation the prospect of bringing or defending an appeal to the New Hampshire Supreme Court or other appellate court. For the lawyer defending the appeal, there is the potential to have defeat snatched from the jaws of victory. For the lawyer bringing the appeal, it represents an opportunity to lose his/her client’s case again. Inevitably, the meticulous process of reading transcripts, legal research, and brief writing will result in dismaying "eureka moments" when the lawyer discovers a tantalizing issue or fashions a brilliant argument but realizes it was not preserved.

Then, after months of hard work, the lawyer will be called upon to defend the product of that deliberate and methodical process during a rapid-fire cross-examination of sorts called the oral argument. The justices will be prepared, engaged, and interested in testing the merits not only of the lawyers’ arguments, but of their own opinions and theories. In close cases, the performance of the lawyers during this distressingly brief opportunity to defend the product of months of work may greatly influence the outcome.

In sum, appellate litigation presents certain unique challenges that distinguish it from the process of advocacy in hearings and at trial before judges and juries. In this article, I will discuss some of the strategies and insights that I have learned and developed to meet these unique challenges while preparing and arguing over eighty appeals to the New Hampshire Supreme Court over the last several years.

Win by Establishing Credibility

When a lawyer has credibility with a court, its clerks and justices read the lawyer’s brief with the assumption that the statement of facts does not distort the record, the analysis presents a reasonable perspective on the meaning of past precedents and statutes, and the arguments are principled, without resort to hyperbole or ad hominem attacks. The New Hampshire Supreme Court has an extensive staff that prepares comprehensive bench memos, analyzing the facts and applicable case precedents that govern the issues on appeal. They – if not the justices themselves – will uncover briefing errors, such as misrepresentation of the record or distortion of the factual and precedential details of a past decision. Always keep in mind that credibility with the Court is established over the long run, but can be destroyed in an instant.

Win with Facts

In many appeals, the Statement of Facts will be the single most important section of the brief. The goal is to weave the facts in the record into a compelling narrative that makes the reader feel intuitively that the outcome following may have been unjust, even before the reader has read any law that might apply to the issue. It will be an unusual case where the best storytelling structure is to follow the order in which the facts were presented to the fact finder; certainly, the brief author should never merely summarize witness testimony. On the other hand, if the narrative reads as biased or ‘selective’ in its presentation of the facts, then the brief author will lose credibility and damage the client’s chances on appeal.

To write persuasive facts while maintaining the appearance (and substance) of objectivity, follow these simple rules. First, never draw conclusions or make judgments. Let the facts speak for themselves.

Second, like a journalist, make extensive use of actual quotations from witness testimony, particularly when attempting to induce the reader to make a judgment regarding that witness. For example, don’t say that a witness told an inconsistent and/or improbable story. Rather, make extensive use of actual quotes from the transcripts that will tend to lead the reader to draw the desired conclusions.

Third, the appellant must always make sure to list all of the most unfavorable facts and include them in his statement of facts, because nothing is more damaging than for the justices to read the bad facts from the opponent’s brief for the first time and realize they were "overlooked" by the appellant. Finally, meticulously cite-check the facts, to avoid the inevitable errors that result from simple mistakes as well as the author’s own "wishful thinking" regarding the strength of the client’s case.

Beware the Strict Preservation Rule

There are few litigation errors more embarrassing than to have a potentially meritorious issue rejected on appeal because it was not "preserved" in the trial court or on appeal. To preserve an issue for appeal, trial counsel must file an appropriate pleading or make a contemporaneous objection that, in either case, specifically identifies the grounds relied upon. E.g., State v. Pepin, 156 N.H. 269 (2007) (Rule 403 issue not preserved because although defendant filed motion seeking to exclude evidence, defendant did not cite that rule); State v. Dube, 130 N.H. 770 (1988) (objection only on hearsay grounds did not preserve relevancy objection).

Further, appellate counsel must include the issue in the notice of appeal, and argue the issue in the brief. State v. Mountjoy, 142 N.H. 648 (1998). As an example of the harshness of this doctrine, in State v. Burke, 153 N.H. 361 (2006), the accused argued in the trial court and on appeal that a statute was unconstitutionally vague and overbroad under the due process clauses of the state and federal constitutions, without specifically identifying (by number) a provision of either constitution. The majority opinion held that the accused failed to preserve her claim under the state constitution and analyzed the issue only under the federal constitution, while the concurrence opined that the accused did not preserve any claim under either constitution!

Take Full Advantage of the Plain Error Doctrine

Although Supreme Court Rule 16-A has proven to be no palliative to the harsh effects of the strict preservation rule for most types of trial errors, it is nevertheless a valuable tool for the appellate advocate. Before placing too much reliance on the plain error doctrine, understand that, for the most part, the Court has relied on the rule only to strike down illegal sentences, e.g., State v. Hancock, 156 N.H. 301 (2007), and as a platform to announce new principles of law without actually granting any relief to the appealing party. E.g., State v. Panarello, 949 A.2d 732 (2008); State v. Lopez, 156 N.H. 416 (2007). Indeed, the Court has to date failed to use the doctrine to correct any error of substance, e.g., granting a new trial because of evidence improperly admitted. So, if the Court has appeared disinclined to reverse a verdict or judgment based on the plain error doctrine, what good is the doctrine?

In fact, it’s a valuable tool for two reasons. First, for institutional litigators, obtaining a favorable change in the law can be far more desirable and important than the actual outcome of any particular appeal. For example, the attorney general’s office that brought the Panarello appeal technically "lost" the appeal by failing to secure the reversal of a lower court ruling in Mr. Panarello’s favor. However, the AG won the larger battle by obtaining an opinion that announced the creation of a "new crime exception" to the exclusionary rule, undoubtedly an excellent outcome from an institutional prosecutor’s perspective.

Second, the rule provides a platform to raise a second or third issue that may have at best a limited chance of success on its own, but underscores the unfairness of the proceeding that follows. When appellate litigators raised such issues prior to the adoption of the plain error rule, their efforts met a brick wall, as the issue would be held unpreserved in a few short sentences. Now, appellate advocates can make use of the rule to direct a spotlight to an unpreserved but egregious error in judgment by the trial judge, illustrating the unfairness of the underlying proceeding or the unreliability of its result. Thus, even if the plain error issue does not prevail on its own merit, it may lessen the faith of the justices of the Supreme Court that the proceeding resulted in the "correct" outcome and thereby (hopefully) it may increase the chances for success on the other preserved issues on appeal.

Change the Story Line

As the saying goes, bad facts make bad law, so when the facts are unsympathetic or downright ugly, the appellate litigator’s job is to shift the focus away from those facts. To do so, use hypothethicals in oral argument and, to a lesser extent, in the brief, to direct the Court’s attention to a different, more compelling scenario. Decisions have consequences – your job is to shift the Court’s focus away from the immediate consequences of its decision (plaintiff keeps absurdly high award, dangerous man stays in prison, etc.) towards the undesirable long-run consequences of adopting the opponent’s position.

To do so, develop hypotheticals that would be resolved unjustly or lead to an untenable outcome if the Court were to rule adversely to your position. Always moot the case before oral argument with experienced appellate litigators who can help test and refine your hypotheticals, fashion better ones, and anticipate hypotheticals that may be posed by the opposing counsel or the justices. Hypotheticals are particularly potent for the appealing party, who gets to go first in oral argument. A good hypothetical can be a game-changer, wrenching the defending lawyer away from his prepared script as he struggles to address the Court’s concerns regarding the application of his proffered principle of law to the hypothetical facts.

For example, in State v. Zidel, 156 N.H. 684 (2008), a case with highly prejudicial facts (the accused attached photos of minor summer camp girls’ faces to hardcore pornographic images), I asked the Court in oral argument to consider whether the First Amendment could countenance the criminal prosecution of a man who, in the privacy of his own home, juxtaposed photographs of children from a WalMart circular to images in a pornographic magazine. The assistant attorney general arguing the case declined to attempt to distinguish this scenario, instead simply arguing in response that such a criminal prosecution could go forward without abridging free speech or due process rights. Thus, the hypothetical successfully shifted the focus from the facts at hand, to the bigger picture: the State’s proposed rule could not be limited to the facts at hand and threatened to abridge freedom of speech and freedom of thought.

Don’t Fear Adverse Precedent

In public appearances, the justices of the current Court have invited lawyers to challenge, not accept as given, the current state of the law as reflected in the Court’s past decisions. Indeed, while proclaiming a healthy respect for stare decisis, the Court has in reality frequently overruled its past decisions, including decades-old settled precedents, over the last decade. For example, in 2008 alone the Court overruled at least 75-years-worth of established precedent. E.g., Alonzi v. Northeast Generation Services Co., 156 N.H. 656 (2008) (overruling 26-year-old precedent); State v. Matthews, 951 A.2d 155 (2008) (overruling 23-year-old precedent); State v. Hebert, (N.H. 2008) (overruling 15- year-old precedent); State v. Duran, 960 A.2d 697 (2008) (overruling 11-year-old precedent). In addition to these decisions that reflect a shift in policy, the Court has also in recent years frequently recognized – and rectified – errors and methodological flaws in its past decisions. E.g., State v. Miller, 155 N.H. 246 (2007) (evidence law); Comm. Res. for Justice v. Manchester, 155 N.H. 748 (2007) (constitutional law).

Don’t Fear the Majority Rule – or the Minority Rule!

When addressing an unresolved issue, the Court likes to conduct canvasses of federal and state decisions from across the country, but has demonstrated little hesitation to reject the majority rule. E.g., State v. Ramos, 149 N.H.118 (2003). Even an esoteric and iconoclastic legal position may become a winner with this Court. In recent decisions, it has canvassed authorities from across the country and then rejected the majority and the minority rule, instead crafting its own unique legal principle or borrowing one from an outlier jurisdiction. E.g., State v. O’Maley, 156 N.H. 125 (2007); EnergyNorth Natural Gas, Inc. v. Certain Underwriters at Lloyd’s & a., 156 N.H. 333 (2007).

Further Reading

In 2005, the New Hampshire Bar Association published a remarkably thorough and comprehensive set of CLE materials under the title "Appellate Advocacy 2005," written by some of this state’s best appellate advocates. Most of the applicable rules and procedures remain the same since its publication four years ago, and the Bar still has a few copies left for sale. It’s a must-have for the appellate advocate’s bookshelf. Get it before it’s gone!

Ted Lothstein opened his solo practice in Concord, Lothstein Law Office, PLLC, after litigating over 80 appeals with the New Hampshire Appellate Defender and thousands of trial-level cases with the Public Defender. He may be reached at

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