Prosecuting or defending an appeal can be a daunting task even for the most experienced trial lawyer.  Appellate practice comes with a set of rules and deadlines that most lawyers do not routinely encounter.  And any misstep could have severe consequences.  Miscalculate when your notice of appeal is due because you thought posttrial motions extended the deadline?  Your appeal is dead.  File a reply brief to your opponent’s opposition brief?  You’re allowed to do so, but you may have waived your right to oral argument.  Insist on reams of irrelevant material to be included in the mandatory record appendix? You have just taxed your client with thousands of dollars in unnecessary costs.

Savvy appellate lawyers also know there are legal doctrines peculiar to their field they can use as “tools” to their client’s advantage. “A trial court speaks only through its written orders” is helpful when the trial judge says something on the record that is, ahem, not helpful.  “A litigant cannot approbate and reprobate” comes in handy when your opponent makes an argument on appeal that runs contrary to the argument he made in the lower court. The “contemporaneous objection rule” and the doctrine of “harmless error” are particularly useful when defending against an appeal. Appellate lawyers ply their trade with these tools, and countless others, far more frequently than other lawyers.

Finally, appellate litigation requires a skill that, sadly, the vast majority of lawyers do not possess—the ability to write well.  Most appeals are won or lost on the briefs, which means they should be superb.  The briefs should be as short as possible (not an easy task, as illustrated by the adage:  “If only I had more time, I would have written a shorter letter”) and persuasive.  There are all sorts of tricks to persuasive writing, and it is difficult to define the craft in a sentence or two. But the court will know it when it sees it. And it will surely know when it sees the opposite.  Poor briefs submitted to the Ninth Circuit Court of Appeals exasperated the bench and produced an opinion that should serve as a warning to the lawyer who dabbles in appeals (and the client who hires him):

“In order to give fair consideration to those who call upon us for justice, we must insist that parties not clog the system by presenting us with a slubby mass of words rather than a true brief. Hence we have briefing rules. By and large, we have been tolerant of minor breaches of one rule or another. Perhaps we are too tolerant sometimes. But there are times when our patience runs out. Then we strike an appellant’s briefs and dismiss the appeal. This is one of those times. This is a time when an appellant has approached our rules with such insouciance that we cannot overlook its heedlessness.”  N/S Corp. v. Liberty Mut. Ins. Co., 127 F.3d 1145, 1146 (9th Cir. 1997) (Emphasis added).

Don’t settle for a slubby mass of words or appellate insouciance.  Call us if you need to prosecute an appeal or defend against one.

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