TIPS FOR APPEALS: How to Persuade on Appeal. Elizabeth Lang Miers January 4, 2012 Dallas Bar Association: Solo and Small Firm Section

Transcription

1 TIPS FOR APPEALS: How to Persuade on Appeal Elizabeth Lang Miers January 4, 2012 Dallas Bar Association: Solo and Small Firm Section 1

2 General overview of court Mediation Motions Briefs Motions for Continuance Oral arguments General Tips 2

3 FIFTH DISTRICT COURT Chief Justice and 12 Justices largest of the 14 courts of appeal 6 counties: Collin, Dallas, Grayson, Hunt, Kaufman and Rockwall Four panels of three justices: A sits Tuesday a.m., B sits Tuesday p.m., C sits Wednesday a.m. and D sits Wednesday p.m. Submission dockets on website 3

4 Panels rotate every couple of months Generally, oral arguments alternate one week civil and the next week criminal 3 civil cases and 9 criminal cases set for oral argument; also have no oral argument dockets Cases heard by separate writ panels, motions panels Many accelerated cases 4

5 MEDIATION FILL OUT ALL INFORMATION IN DOCKETING STATEMENT IF YOU WANT MEDIATION SAY SO AND PUT IN NAME OF MEDIATOR IF YOU DON T WANT IT EXPLAIN IF YOU OBJECT TO MEDIATION DO IT TIMELY AND GIVE REASON 5

6 MOTIONS DON T OPPOSE FIRST MOTIONS TO EXTEND TIME WITHOUT GOOD AND STATED REASON DON T ASK FOR MORE TIME WITHOUT GOOD AND STATED REASON SLOWS DOWN WHOLE PROCESS 6

7 TIPS FOR PREPARING THE BRIEF READ OPINIONS FROM THIS COURT UNDERSTAND FORMAT: STATEMENT OF CASE, OVERVIEW OF FACTS, STANDARD OF REVIEW, ISSUES, LEGAL DISCUSSION, APPLICATION TO CASE AND CONCLUSION TO MAKE SURE YOU ADDRESS THOSE IN YOUR BRIEF 7

8 WORK BACKWARD FROM RESULT YOU WANT DRAFT A JUDGMENT, CLEARLY STATING WHAT RESULT YOU WANT DRAFT AN OPINION THAT SUPPORTS WHAT YOU ARE SEEKING WILL HELP YOU EXPLAIN THE CASE AND YOUR POSITION IN YOUR BRIEF AND ORAL ARGUMENT 8

9 ISSUES WE REVIEW ISSUES AVOID MULTIPLE DETAILED AND TECHNICAL POINTS OF ERROR EXAMPLE: TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT FOR PLAINTIFF 9

10 DO NOT HAVE TOO MANY ISSUES GENERALLY NEED NO MORE THAN FOUR OR FIVE LESS LIKELY TO WAIVE WITH GENERAL ISSUES 10

11 STANDARD OF REVIEW ADDRESS THE STANDARD OF REVIEW IT IS IN EVERY OPINION AND IT MATTERS DE NOVO/ABUSE OF DISCRETION 11

12 THE RECORD FOLLOW THE RULES MAKE SURE WHAT YOU NEED TO HAVE IN THE RECORD IS PART OF OUR RECORD SUPPLEMENT THE RECORD CITE TO RECORD ERROR PRESERVATION IS CRITICAL 12

13 FACTS STATE FACTS IN AN OBJECTIVE WAY DON T MISCHARACTERIZE DON T ATTACK INCLUDE GOOD AND BAD FACTS CITE TO RECORD 13

14 PARTIES IDENTIFY CLEARLY BE CONSISTENT IN HOW YOU REFER TO PARTIES THROUGHOUT YOUR BRIEF 14

15 ARGUMENT PRESENT YOUR ARGUMENT CLEARLY IF ARGUMENT IS NOT SUPPORTED BY RECORD REFERENCES AND CASE CITES MAY RESULT IN A WAIVER EXPLAIN HOW IT WAS PRESERVED FOR APPEAL EXPLAIN EFFECTS OF DECISION ON EACH ISSUE; IS ONE DISPOSITIVE? 15

16 AUTHORITIES MOST IMPORTANT: SUPREME COURT OF TEXAS, COURT OF CRIMINAL APPEALS AND OUR COURT AND U.S. SUPREME COURT WHERE APPLIES USE YOUR BEST CASES USE CORRECT CITES AND CHECK CASE HISTORY RECOGNIZE AND DISTINGUISH BAD 16 CASES

17 CONTENT PROOF CAREFULLY AND MAKE SURE RECORD AND CASE CITES ARE RIGHT FOOTNOTES: USE IF ARGUMENT IS PERIPHERAL OR FOR STRING CITES EDIT LIBERALLY 17

18 REPLY BRIEFS DON T REHASH ARGUMENT MAKE IT TRULY A REPLY NO NEW ISSUES OR ARGUMENTS DON T REPLY TO THE REPLY JUST TO CONTINUE ARGUMENT 18

19 APPENDIX FOLLOW THE RULES PUT AN INDEX IN THE FRONT WITH TAB REFERENCES MAKE SURE DOCUMENTS ARE ALL LEGIBLE 19

20 POST BRIEFING FILINGS UPDATE COURT WITH NEW CASES BEFORE ORAL ARGUMENT ALSO UPDATE WITH SIGNIFICANT NEW CASES AFTER ORAL ARGUMENT DO NOT REHASH ARGUMENT 20

21 CONTINUANCE DON T ASK AT THE LAST MINUTE WITHOUT REALLY GOOD REASON THINK ABOUT WAIVING ARGUMENT INSTEAD OF RESCHEDULING LET US KNOW IF CASE IS SETTLED AS EARLY AS POSSIBLE 21

22 TIPS ABOUT ORAL ARGUMENT 22

23 Justice Robert T. Jackson said: I used to say that, as Solicitor General, I made three arguments in every case. 23

24 First came the one I had planned as I thought, logical, coherent, complete. Second was the one I actually presented interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night. 24

25 What do you do? So that you present that utterly devastating argument to the court instead of the disappointing one? 25

26 First, decide whether you want oral argument Generally, you want oral argument because you believe you will be better able to persuade the court in person If other side waives, you may want to waive Think about what the court will have about your case if you do not argue 26

27 Basics: If You Want Oral Argument You must request oral argument or it is waived; put it on front of brief Even if you request oral argument, the court may deny the request You can later waive oral argument but don t wait until late in process 27

28 Remember your audience: How courts prepare for argument Appellate courts have several arguments scheduled. Before each, the court: Reads briefs Does research and reads cases Reads record Does the court vote or confer before argument? Does the court assign opinion before conference? Oral argument really does figure in decisionmaking 28

29 What is value added of the oral argument? Time limits: 20 minutes per side plus 5 minutes rebuttal Focus on your major points and how the court can get there Answering questions is the ultimate opportunity to persuade 29

30 How do you prepare for argument? Mastery of the case: know the content of the brief and the record Cases; know courts and authors Record cites Opposing briefs Think about what you would want more information about if you were the judge 30

31 One method to use to decide what to argue: Work backward: think about result you want What would opinion need to say to get there, i.e. standard of review, etc. What needs to be argued, challenged, distinguished to get there 31

32 Start with your strengths You will get questions so start with your strengths Frame the argument carefully Prepare for questions Let court know if you are not following order of arguments in your brief 32

33 Tailor argument to standards of review on appeal Is it abuse of discretion? De novo? What does that mean to your case? 33

34 Be honest Don t say you know something if you don t Don t say a case says something it doesn t Admit it if something is not in the record Admit it if cases are against you 34

35 Pointers Oral argument in appellate courts is not debate Plan a beginning, middle and end so that you have good beginning and end no matter what else happens Go for content of argument, not how many details you can include in argument Tell us where it is in your brief; we can listen to the tape of argument later 35 Be the most prepared person in the room

36 Basics of argument Practice Don t make a jury argument Don t just rehash brief Argue based on standard of review Argue based on what is in record Focus on what error is argued Focus on what result you want Know the record 36

37 Presentation Be respectful of the appellate court, the trial court, and opposing counsel Listen carefully to questions Don t interrupt and don t argue Try to answer questions as well as possible Know cases, courts, authors of opinions Don t shake head, roll eyes, etc. during other counsel s argument Make eye contact; don t read 37

38 Demonstrative Aids Can be very helpful Have to be readable Generally more helpful to have it in hand-out form Make sure is in record and copy to counsel Need to explain it if you give it to us Think about what was most helpful to 38 you in understanding your position

39 FINAL TIPS: THINGS THAT HURT No cites to cases or record waiver Bad cites to cases or record Lack of clarity or focus 3 or 4 issues, not 12 Negative comments about judge, counsel, etc., except to demonstrate error Splitting argument; may run out of time Arguing with or interrupting judge 39

40 FINAL TIPS: THINGS THAT HELP Some recordings of oral arguments are posted on our website and audio and video recordings are available on other websites; Listen to and watch other oral arguments on websites or in person to get a feel for them Show up early for argument to listen to arguments ahead of yours Read other good briefs 40

41 GENERAL TIPS READ THE RULES GO TO OUR WEBSITE CALL THE CLERK S OFFICE THESE ARE INTENDED AS GENERAL TIPS ONLY; OBVIOUSLY COUNSEL NEEDS TO USE BEST JUDGMENT ON APPROACH TO INDIVIDUAL CASES 41