Appellate Law – What’s Not to Love?
By Kathleen Chewning Barnes
I am a solo appellate practitioner. When I say “solo,” I really mean it. Just me. No paralegal. No secretary. That is a great thing about appellate law—all you need to practice appellate law is the trial court record, a legal research engine and yourself.
“Appellate law” refers to the appeal of a decision and the procedural law that applies to the appeal. An appellate attorney may handle cases involving many different areas of subject-specific law. For example, I currently have appeals involving product liability, real estate, personal injury, mortgage foreclosure, bankruptcy and family law. The diversity of subject matter is a great advantage to practicing appellate law.
Practicing appellate law requires concentrated time to examine the trial record, research legal issues and, most importantly, write briefs. The core part of an appellate attorney’s work is brief writing. A case may be decided based solely on the briefs. A good rule of thumb to consider when writing a brief is that the appellate court knows nothing about your case, whereas you likely know it inside and out, backwards and forwards. Think about how you would explain the case to a non-lawyer friend.
Write the facts first, sometimes even before completing the legal research. Write the facts section in chronological order to explain what happened in a way that is understandable to someone unfamiliar with your case. Sometimes the timing of events and knowledge have a big impact on a case. If the facts are long, headings are always helpful to the reader. An appellate judge once told me that someone should be able to read the table of contents of a brief and know what the case is about. While that is sometimes difficult to do, even trying to do it forces the writer to organize and plan the brief.
Knowing the facts first will help you to discern in your legal research which opinions are the most factually analogous to your case. Try to have at least two independent reasons that the court should rule in your favor. Usually, an appellate attorney becomes involved in a case after the appealed decision is issued by the lower court. In that situation, review every document that the appellate court could review, including all pleadings, transcripts, orders, motions and any exhibits given to the lower court. It is amazing what evidence turns up when someone takes the time to read every page.
If a case is chosen for oral argument, it is a great opportunity to explain your position to the court. Many people say to think of oral argument like a conversation with the court. This is good advice, but it is a conversation for which you need to be extremely prepared. If the record on appeal is large, use post-it note tabs for easy reference to important documents or testimony. Make a one-page reference list of relevant pages in the record. Read and re-read the record and the cases cited in the briefs. Usually, after putting a case down for a long time, you will find that reading the cited cases gives a fresh perspective. Plan and memorize your opening and closing sentences of oral argument. Sometimes the judges will begin with questions as soon as you finish the first sentence. I recommend a general outline with the key points you want the court to hear.
Finally, read the appellate opinions in the Advance Sheets while you are waiting for oral argument. Sign up to get an email notification for the Advance Sheets and unpublished opinions every Wednesday. It will keep you up-to-date on the latest legal developments, including those that may affect your case. Reading opinions is also a good way to improve your writing and see how the court formats citations.
Appellate law is a rewarding practice that is valuable and necessary in all areas of the law. Almost every lawyer will deal with an appeal at some point in his or her career. Hopefully, you will take the opportunity to consider including appellate law as an integral skill set in your professional development.
“Appellate law” refers to the appeal of a decision and the procedural law that applies to the appeal. An appellate attorney may handle cases involving many different areas of subject-specific law. For example, I currently have appeals involving product liability, real estate, personal injury, mortgage foreclosure, bankruptcy and family law. The diversity of subject matter is a great advantage to practicing appellate law.
Practicing appellate law requires concentrated time to examine the trial record, research legal issues and, most importantly, write briefs. The core part of an appellate attorney’s work is brief writing. A case may be decided based solely on the briefs. A good rule of thumb to consider when writing a brief is that the appellate court knows nothing about your case, whereas you likely know it inside and out, backwards and forwards. Think about how you would explain the case to a non-lawyer friend.
Write the facts first, sometimes even before completing the legal research. Write the facts section in chronological order to explain what happened in a way that is understandable to someone unfamiliar with your case. Sometimes the timing of events and knowledge have a big impact on a case. If the facts are long, headings are always helpful to the reader. An appellate judge once told me that someone should be able to read the table of contents of a brief and know what the case is about. While that is sometimes difficult to do, even trying to do it forces the writer to organize and plan the brief.
Knowing the facts first will help you to discern in your legal research which opinions are the most factually analogous to your case. Try to have at least two independent reasons that the court should rule in your favor. Usually, an appellate attorney becomes involved in a case after the appealed decision is issued by the lower court. In that situation, review every document that the appellate court could review, including all pleadings, transcripts, orders, motions and any exhibits given to the lower court. It is amazing what evidence turns up when someone takes the time to read every page.
If a case is chosen for oral argument, it is a great opportunity to explain your position to the court. Many people say to think of oral argument like a conversation with the court. This is good advice, but it is a conversation for which you need to be extremely prepared. If the record on appeal is large, use post-it note tabs for easy reference to important documents or testimony. Make a one-page reference list of relevant pages in the record. Read and re-read the record and the cases cited in the briefs. Usually, after putting a case down for a long time, you will find that reading the cited cases gives a fresh perspective. Plan and memorize your opening and closing sentences of oral argument. Sometimes the judges will begin with questions as soon as you finish the first sentence. I recommend a general outline with the key points you want the court to hear.
Finally, read the appellate opinions in the Advance Sheets while you are waiting for oral argument. Sign up to get an email notification for the Advance Sheets and unpublished opinions every Wednesday. It will keep you up-to-date on the latest legal developments, including those that may affect your case. Reading opinions is also a good way to improve your writing and see how the court formats citations.
Appellate law is a rewarding practice that is valuable and necessary in all areas of the law. Almost every lawyer will deal with an appeal at some point in his or her career. Hopefully, you will take the opportunity to consider including appellate law as an integral skill set in your professional development.
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