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An Appellate Attorney Knows The Appellate Brief is Intellectual Warfare

Posted on 5 November, 2014 at 13:25

As appellate attorneys, we have scoured through many appellate briefs filed in the appellate courts throughout this country. Unfortunately, many are poorly written and a terrible work product. The primary reason for this poor work product is that many trial attorneys insist on pursuing their lost cause on appeal. Rather than referring the case to a skillful appellate attorney, some of these trial lawyers attempt to handle the appeal on their own. As a consequence, a poorly written appellate brief is usually submitted, and the client’s appeal is ultimately lost.

 

The primary reason these briefs are poorly written is that many trial lawyers essentially write a rant. He or she is very much angry at the determination in the trial court and this anger echoes throughout the brief. For instance, the trial lawyer is angry with the judge’s ruling on a significant piece of evidence and begins the brief with the argument: “The Judge foolishly ruled in the defendant’s favor. He simply got the law wrong, this prejudiced my client and a new trial is in order.” This type of argument is not a legal argument but is simply a rant. It may appease the client, but this type of argument will not be taken seriously by an appellate court.

 

Rather than potshotting the trial court judge, the skillful appellate attorney begins the argument by stating the trial court “erroneously ruled” or “mistakenly decided” a particular issue. Thereafter, the skillful appellate attorney cites the correct statement of law and how it was misapplied by the trial court. Finally, the experienced appellate attorney shows how the trial court error seriously prejudiced his client and that fairness requires a new trial. 

 

An appellate brief is no place to go on a rant or attack a trial court judge. This is intellectual warfare – it is a skillset of controlled aggression. Appellate attorneys understand that letting your emotions get the best of you can weaken your argument. Just as a prize fighter uses controlled aggression in the ring, the appellate attorney must control his or her aggression in an intellectual argument. The appellate attorney is trying to win an appeal and the prize fighter is trying to win a fight. Both combatants are similar in that they don’t flail their punches, but used controlled aggression to win the fight. 

 

Written by:   Alexandra Siskopoulos, Esq.

Telephone:   (646) 942-1798

Email:           [email protected] 

 

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Categories: Appellate Attorneys