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How an Appellate Attorney Formulates a Good Legal Argument

Posted on 23 June, 2014 at 14:45

As any appellate attorney knows, a good legal argument should focus on the law also known as legal precedent. Yet, this should not be the entire focus of your appellate brief. Your appellate brief should also focus on the argument that a just result takes place. A considerate and fair tribunal, also known as the appellate judges, would want to see that a fair and equitable result be effectuated. Thus, your legal argument should not only focus on the law, but also that a just and fair result be the ultimate order of the court.

 

To exemplify this point, here is an example of how an argument for a fair and equitable result would play out outside of an appellate forum. Let’s pretend that there is an eviction proceeding taking place in state XYZ. You represent the tenant in an eviction proceeding. State XYZ has a statute that states that no eviction proceeding can proceed without proof that the tenant was served via certified mail giving the tenant 60 days’ notice of the eviction proceeding. The landlord is claiming that he notified the tenant of the eviction proceeding sixty days earlier, however, the landlord failed to notify the tenant pursuant to statutory law. Specifically, the landlord failed to produce any evidence that a certified letter had been sent within the sixty day time frame. Your client argues that she was only notified of the eviction within 15 days of the eviction date via regular mail. As proof, your client brings evidence of the letter sent only 15 days prior to the actual eviction date. Clearly the law and the evidence is on your client’s side.

 

This should be a no brainer legal argument and a legal victory should be in your sights. However, an appellate attorney knows that you should also focus on the equitable results of the judge’s decision. For example, your client is a single mother due to the fact that her husband died in Iraq 3 years ago and that their 3 kids would be removed from their home of over 10 years. Your client did fail to pay the rent for 2 months but this was due to your client’s son needing special treatment that was not covered by her HMO. Essentially, your client was required to forgo the rent to save her son’s life. Luckily, the surgery was successful. This helps the court to understand that your client was facing a dire circumstance and this coupled with the landlord failing to adhere to the statutory law would equal an unjust result.

 

Your client now has the necessary funds to pay her rent and plans to do so for the next decade. As a result, it would be incredibly unfair and unjust to evict your client due to extraordinary and unforeseen circumstances. Additionally, your client is willing to pay the past due rent and an additional one month rent to show her good faith to the court and her landlord of 10 years. In the above example, the law was clearly in your favor whereas the landlord did not have sufficient proof to establish that he properly notified the tenant of the eviction. Moreover, you had conclusive proof that the service filed was improper and contrary to statutory law. Nevertheless, an appellate attorney knows that the equitable argument that a just result be decided is just as important and just as necessary as the argument that notice was improper. The fact that your client is a widow with 3 kids and lived in the apartment for 10 years was an important argument to make.

 

Thus, anyone making a legal argument would be wise to remember what good appellate attorneys do in formulating a legal argument – argue the law forcefully, but do not forget to argue that justice must be served by the court rendering a decision that dictates that the parties receive a fair and just result.

 

Written by:   Alexandra Siskopoulos, Esq. 

Telephone:   (646) 942-1798 

Email:           [email protected] 

 

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Categories: Appellate Attorneys