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Why an Appellate Attorney Should Always Take the Brief in Opposition Seriously

Posted on 17 June, 2014 at 14:25

If you are an appellate attorney who is representing the Respondent or Appellee, you will soon see the importance of writing a strong Brief in Opposition. In most instances, writing the Brief in Opposition is usually a much easier task than the Appellant’s Brief. Why? Well, you already have a victory in place in the lower court. As a result, the odds generally favor an affirmance over a reversal - so the odds are with you. However, as an appellate attorney, you must always keep in mind that Appellate Courts can and will reverse a lower court’s decision. Consequently, your job with the Brief in Opposition is to preserve the victory you obtained in the lower court. This requires that the Brief in Opposition strongly presents why an affirmance should be issued by the Appellate Court.

 

Your job in the Brief in Opposition is to discount the Appellant’s Brief and to reaffirm that a just result was rendered at the trial court level. Appellate attorneys know that there are certain ways to discount the Appellant’s Brief. First, attack the cases cited by the Appellant as inconsequential or irrelevant. This step takes hours of work. The appellate attorney should always check each and every citation in the Appellant’s Brief. Many times attorneys cherry pick quotes or completely miscite the law. As an appellate attorney, it is your job to draw this to the attention of the Appellate Court. Second, put forward the argument that the lower court’s decision, even if flawed, was the proper and just verdict. Many times an attorney representing a client on appeal is not an appellate attorney and spends countless pages in the Appellant’s Brief citing non-prejudicial error as the basis for a reversal. Remember, Appellate Courts are concerned with prejudicial error, and it is prejudicial error that the court seeks to redress through a reversal. Third, remind the Appellate Court that a significant amount of time and legal resources have already been expended on the case requiring that the Appellate Court respect the lower court’s decision.

 

Again, the Respondent or Appellee usually has an easier job in the Appellate Court. The odds are certainly with you, but do not rest on your laurels. If you wish to retain your legal victory, you must produce a professional and powerful brief. Otherwise, your victory may be fleeting as your case gets reversed by the Appellate Court. 

 

Written by:    Alexandra Siskopoulos, Esq.

Telephone:    (646) 942-1798 

Email:            [email protected] 

 

Disclaimer: This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Why an Appellate Attorney Should Narrow the Issues on Appeal.

Posted on 4 June, 2014 at 14:05

One of the most difficult tasks appellate attorneys face is narrowing the issues on appeal. The mastery of this skill set is critical to appellate practice. An appellate attorney preparing an appellate brief must ensure that the brief is crisp and focuses on jugular issues. Jugular issues are those issues that have a good chance of winning the appeal. Consequently, an appellate attorney should limit this argument to approximately four appellate issues. Lawyers that throw fifteen or twenty appellate arguments into their appellate brief are simply wasting everyone’s time – most importantly their client’s.

 

One reason to narrow issues on appeal is that appellate briefs have page limitations. When an attorney chooses to recite a laundry list of appellate arguments in the appellate brief, the attorney is unable to properly brief the law and develop the argument in any significant way due to the page limitations. This results in a less persuasive argument on all issues which only decreases your chances of success on appeal.

 

Some attorneys rationalize listing twenty appellate issues claiming that it shows how many errors littered the lower court proceeding. This is usually an unpersuasive argument in an appellate court. No proceeding is perfect. The appellate court, however, is only concerned with prejudicial error. Arguing tangential issues which did not result in prejudicial error is simply wasting the court’s time.

 

Another common rationalization is that listing all your client’s complaints about the proceeding makes the client happy. This is usually true in the short term. When the client reads the initial brief recounting all their complaints, they are usually very pleased because they know you were listening. However, your client is most likely not an attorney and your client hired you for your knowledge and experience in appellate practice. Their happiness will quickly dissipate when the brief in opposition and the appellate court’s decision recite all the reasons your laundry list of appellate issues fail – namely, that you wasted the court’s time with errors that did not rise to the type of prejudicial error that warrants appellate relief.

 

As an attorney you must listen to and digest everything your client brings to your attention. If your concern is making sure your client knows that you understand their position, the place to do this is in detailed conversations as to why certain errors are not appealable issues and why you are pursuing certain issues and not others. The appellate brief is not the place to do this. Your client is hiring you to give them the best chance of winning on appeal. They are not hiring you to appease them and give them false hopes. 

 

Because an appellate brief should be crisp, an appellate attorney must identify only the very best issues on appeal. This is done through a meticulous review of the record. A good appellate practitioner must pinpoint the critical mistakes that occurred in the lower court and should not be concerned about picayune matters that waste precious space. Remember, a good appellate brief should be limited to approximately 25 pages and thus your available space in an appeal is precious and should not be wasted on trivial matters. 

 

Written by:  Alexandra Siskopoulos, Esq.

Telephone:  (646) 942-1798

Email:          [email protected]

 

Disclaimer: This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Why an Appellate Attorney Should Review the Record Before Taking on an Appeal

Posted on 28 May, 2014 at 11:55

The prospective client should never hire an appellate attorney that is willing to take the appeal without reviewing the record. The record is what the appellate court will consider on appeal. Thus, an appellate attorney that immediately agrees to take your case is usually a waste of time. An appellate attorney must comb through the record to discern if there is prejudicial error warranting a reversal of the Lower Court’s decision. This is often a laborious process so it is normal if an appellate attorney charges a case analysis or case review fee to look over the case file. Like a doctor needs to perform an x-ray to determine your injuries, an appellate attorney must perform an x-ray of the record. After a review of the record, an appellate attorney will be in a much better position to decide the next step in your case. 

 

An appellate attorney should review the record before taking on an appeal for numerous reasons. Unlike litigation, where much of the facts and circumstances are at issue and plagued with conflicting versions of events, appellate attorneys are bound by the record on appeal. It is only in a rare circumstance that the error warranting reversal is found on the face of the judgment or decision. It does happen, but it is rare. The record is where an appellate attorney must look to decide if the appeal is meritorious, and failure to review the record before taking on the case can be disastrous.

 

Many times people approach an appellate attorney wanting to appeal a case; however, upon a review of the record, there is no appealable issue. All too often, prospective clients walk through the door with a laundry list of why they should prevail on appeal. This potential client is sometimes quite accurate in describing the errors that occurred in the Lower Court. One problem - review of the record reveals that no error was preserved for appellate review. In another instance, the potential client again provides the appellate attorney with a plethora of reasons they should win on appeal. Upon review of the record, the appellate attorney finds that none of the reasons listed by the potential client are anywhere in the record. After a conversation with the potential client, they advise you that they did not realize that they should have raised these arguments in the Lower Court, but now want to explain this new version of events to the Appellate Court. These two circumstances place the appellate attorney in an unenviable position. The client is expecting you to perfect an appeal, and you have now accepted a retainer for an appeal that has no appealable issues. Filing a frivolous appeal (one in which there is no colorable argument on appeal) is a waste of the court’s time and of the client’s time.

 

The appellate attorney’s review of the case file before taking on an appeal is beneficial to the potential client. Review of the record will reveal if there are appealable issues which can be discussed with the client. This will provide the client with some information on the scope of the appeal so that they can make an informed decision in retaining your services. Most importantly, review of the record on appeal will also reveal if there are no appealable issues. If there are no appealable issues, the appellate attorney can explain this to the potential client so that they do not waste their money on a case that has no appealable issues and thus, no ability to win on appeal. Clients retain an appellate attorney for a fighting chance, and a record that reveals no meritorious appellate issues is dead on arrival. 

 

Written by:   Alexandra C. Siskopoulos, Esq. 

Telephone:   (646) 942-1798 

Email:           [email protected] 

 

Disclaimer: This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

An Appellate Attorney Knows the Importance of Properly Formatting an Appellate Brief

Posted on 22 May, 2014 at 10:35

An appellate attorney knows there is a certain formula in formatting a great appellate brief. That is, a great appellate brief must be crisp and well written. Remember, your goal is to engage and persuade the reader. Think about the last time you purchased a poorly written book. More than likely you stopped reading after the first two chapters and tossed the book to the side. A good appellate attorney knows that this is not what they want to happen to their appellate brief.

 

There is a formula that every appellate attorney should follow in drafting an appellate brief. Specifically, the paragraphs should be short and easy to read. The smart appellate attorney should always aim for two paragraphs on each and every page of his or her appellate brief. No one wants to read a paragraph that goes on for three pages. The paragraphs should contain crisp and straightforward words that get to the point and clearly indicate the arguments you direct to the appellate court. The person reading your brief already has an advanced degree. You are not doing yourself any favors by trying to complicate a brief or show off your extensive Latin phraseology. The reader is likely reviewing hundreds of briefs per month, and reading your brief should not be a chore. It should be an easy to read, concise and persuasive argument. 

 

Additionally, there should be sub-headings every 3-4 pages in your brief. This will naturally lead the reader into each argument you make in your appellate brief. Remember, even the sub-headings should be persuasive – the sub-heading should always indicate why your argument is the better argument. As an appellate attorney, you should never waste words, and each sentence should serve a purpose. Don’t forget - these sub-headings should also be listed in the Table of Contents. This will also allow the reader to quickly note or reference sections he or she deems important. 

 

Even if permissible, you should rarely insert footnotes in your brief. This will only distract the reader from the central arguments in the appellate brief. Footnotes can disrupt the flow of the reader. Every time the reader has to reference a footnote, they stop reading the paragraph and it disrupts the ease of the read. Additionally, too many footnotes can cause a reader to simply ignore the footnotes. Think about your law school books - how many times did you just gloss over the footnotes? Footnotes can serve a legitimate purpose; however, they should be used sparingly. 

 

A good appellate attorney also knows that a brief should not be more than 25 pages long. It is called a brief for a reason. The last thing that an appellate court wants is a long winded, circuitous legal document. Get to your point with short, crisp words, and you are on your way to a good appellate argument. 

 

Written by:   Alexandra C. Siskopoulos, Esq.

Telephone:   (646) 942-1798

Email:           [email protected] 

 

Disclaimer: This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

A Good Appellate Attorney Knows Why the Reply Brief is an Invaluable Tool

Posted on 14 May, 2014 at 11:15

A good appellate attorney should always consider filing a Reply Brief. This brief allows you to respond to your opponent’s legal arguments and also gives you the opportunity to reinforce the central theme of your legal arguments on appeal. Appellate lawyers should also explain, in a Reply Brief, why their client’s legal position is the superior choice for the appellate court.

 

When the appellate court rules allow for the filing of a Reply Brief, an appellate attorney should strongly consider filing one. The first reason why the Reply Brief should not be overlooked is simple – it provides your client with the last word. When appellate courts review the briefs, they usually read them in order. First the Appellant’s Brief, then the Appellee’s or Respondent’s Brief in Opposition, and then, finally, the Reply Brief. In any argument, it is always beneficial to be the one who gets the last word. It is usually the thought that lingers with the reader when they walk away from the papers.

 

That being said, a good appellate attorney also needs to structure the Reply Brief in an appropriate manner. As any appellate attorney knows, this is not a place to raise new arguments. This is, however, the place to counter the arguments raised by your opponent. It is also the place to explain why the appellant’s position is the superior argument and why the court should rule in the appellant’s favor. Remember, it is called a “Reply” Brief for a reason.

 

The appellate attorney drafting the Reply Brief should also remember that a good Reply Brief swings back around to the appellant’s main arguments. If you simply counter the points made in the opposition papers, you may inadvertently leave the appellate court with only the memory of the points made in the opposition papers. Remember, the Reply Brief is the usually the last document the appellate court reads. Your job as an appellate attorney is to leave the appellate court thinking that the appellant’s arguments are the superior and winning argument. You weaken your argument when you fail to segue back to in order to remind the court that your client’s arguments are stronger than your opponents. You must segue back to your arguments in the Reply Brief to do this. Again, a good appellate attorney should always favor filing a Reply Brief in an appeal. 

 

Written by:   Alexandra C. Siskopoulos, Esq.

Telephone:   (646) 942-1798

Email:           [email protected] 

 

Disclaimer: This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

The Appellate Attorney and Oral Argument

Posted on 17 September, 2013 at 13:05

As any appellate attorney knows, one of the last steps in the appellate process, before an appeals court renders a decision, is oral argument. This is the stage of the appeal where appellate justices question both sides as to the merits of their respective arguments. Many people, from the pro se litigant to an experienced trial attorney, misapprehend the purpose of oral argument. This is not a forum to give a speech. 

 

Within the first few minutes of your argument, the appellate justices will pepper you with a series of questions. You can attempt to cling to your prepared speech (a terrible idea) or you can answer the justices' questions to the best of your abilities and to the benefit of your appellate case. In order for this to be accomplished, the appellate attorney must thoroughly prepare for oral argument. 

 

An experienced appellate attorney reviews all the papers submitted, does additional research as to whether there has been any developments in the law, and most importantly is prepared to address any weaknesses in not only their opponent's arguments, but also weaknesses in their own case. It is important to remember that both sides to a case have weaknesses - if they did not, there would never have been a trial or an appeal. An experienced appellate attorney is skilled at addressing all these issues, and is experienced at fielding a variety of questions from a panel of appellate justices. 

 

Remember, oral argument is unlike any trial court argument. The appellate justices come thoroughly prepared and the person arguing before them must be too. Simply rereading the submitted briefs, does not prepare you for oral argument. 

 

Written by:   Alexandra C. Siskopoulos, Esq.

Telephone:   (646) 942-1798

Email:          [email protected]


 

Disclaimer: This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.