Vermont Bar Association Seminar Materials Appellate v. Trial Advocacy: Tips and Traps October 14, 2016 Lake Morey Resort Fairlee, VT Speakers: David Boyd, Esq. Hon. Geoffrey Crawford Hon. Harold Eaton Hon. Marilyn Skoglund
Appellate v. Trial Advocacy -Tips and Traps I. Choosing Counsel A. Trial Counsel 1. Risk Of Tunnel Vision a) Estate of Gilkison, 65 Cal. App. 4th 1443, 1449-1450 (Cal. Ct. App. 1998) ( trial attorneys who prosecute their own appeals... may have tunnel vision[], become convinced of the merits of their cause, and lose objectivity ) 2. Process Experience a) Susan B. Haire, Stefanie A. Lindquist, & Roger Hartley, Attorney Expertise, Litigant Success, and Judicial Decision-Making in the U.S. Courts Of Appeals, 33 LAW & SOC Y REV. 667, 678-679 (1999) (finding that both plaintiff and defendant-appellants whose counsel had no previous experience before the circuit court had significantly lower success rates in a sampling of product liability cases) 3. Potential Conflicts a) Issue Conflicts-Establishing Precedent Adverse To Another Client (1) VT. R. PROF L CONDUCT 1.7(a) b) Personal Interest Conflicts-Arguable Mistakes At The Trial Level (1) VT. R. PROF L CONDUCT 1.7(a)(2) B. Separate Appellate Counsel 1. Cost 2. Unfamiliarity With Case II. Argument Selection A. Standard Of Review 1. Questions Of Law-Nondeferential And Plenary a) Vt. Transco LLC v. Town of Vernon, 2014 VT 93A, 8 ( Our review of legal conclusions... is nondeferential and plenary ) b) Banker v. Nighswander, Martin & Mitchell, 37 F.3d 866, 870 (2d. Cir. 1994) (Review of conclusions of law and mixed questions of fact and law is de novo) 2. Evidentiary Rulings-Abuse Of Discretion a) State v. Burke, 2012 Vt. 50, 23 (Evidentiary rulings are reviewed deferentially and reversed only when there has been an abuse of discretion that resulted in prejudice ) b) United States v. Hourihan, 66 F.3d 458, 463 (2d Cir. 1995) (evidentiary rulings are ordinarily reviewed for abuse of discretion ) 3. Findings Of Fact-Clear Error a) Lawson v. Brown s Home Day Care Ctr., Inc., 2004 VT 61, 18 ( We will not disturb the trial court s factual findings unless they are clearly erroneous, meaning there is no credible evidence in the record to support them. ) b) Metzen v. United States, 19 F.3d 795, 797 (2d Cir. 1994) (Judicial findings of fact shall not be set aside unless they are clearly erroneous )
4. Credibility-Clear Error a) In re Nash, 158 Vt. 458, 464 (1991) (the clearly erroneous test ) applies to trial court findings based on testimony) b) Metzen v. United States, 19 F.3d 795, 797-8 (2d Cir. 1994) (Appellate courts give even greater deference to credibility determinations, however, when a trial court s findings, premised on witness credibility, are contradicted by documents or objective evidence, the court of appeals may find clear error) B. Know Your Audience 1. Trial Court a) A Just Result In One Case CASE 7 (2008) ( Bear in mind that the trial judges are fundamentally different from appellate judges. They focus on achieving the proper result in one particular case, not on crafting a rule of law that will do justice in the generality of cases. ) b) The Importance Of Precedent CASE 7 (2008) ( In most jurisdictions, trial judges are more disposed than appellate judges to strict observance of governing case law.... ) c) The Importance Of Facts CASE 7 (2008) ( at the trial court level you are well advised to spend more time on the facts and on the discussion of precedent... and less time on policy arguments ) 2. Appellate Court a) A Just Result In Most Cases b) Policy Arguments c) The Importance Of Precedent C. Argument Structuring 1. Order Of Strength a) David Lewis, What s the Difference? Comparing the Advocacy Preferences of State and Federal Appellate Judges, 7 J. APP. PRAC. & PROCESS 335, 346 (2005) (presenting survey results reflecting a strong preference among federal and state appellate judges for briefs organized with their most persuasive arguments first) III. Traps For The Unwary B. Deadlines 1. May Be Jurisdictional 2. May, Or May Not, Be Different a) Example: VT. R. CIV. P. 78(b)(1) (providing 15 days to respond to many types of motions) v. Vt. R. App. P. 27(a)(3) (providing 7 days to respond to motions) B. Common Mistakes - 2 -
1. Jury Arguments a) Alex Kozinski, The Wrong Stuff, 1992 BYU L. REV. 325, 333 (1992) ( When a lawyer resorts to a jury argument on appeal, you can just see the judge sit back and give a big sigh of relief. We understand that you have to say these things to keep your client happy, but we also understand that you know, and we know, and you know we know, that your case doesn t amount to a hill of beans, so we can go back there in the conference room and flush it with an unpublished disposition. ) 2. Inadequate Statement Of The Case a) Procedural Context (1) David Lewis, What s the Difference? Comparing the Advocacy Preferences of State and Federal Appellate Judges, 7 J. APP. PRAC. & PROCESS 335, 338 (2005) (presenting survey results reflecting a strong preference among appellate judges for inclusion of the procedural context of the appeal in the statement of the case) b) Identification Of All Parties (1) Id. at 339 (presenting survey results reflecting a strong preference for identifying all parties in the statement of the case and statement of the facts of a brief) c) Critical Facts (1) Id. at 339 (presenting survey results reflecting a very strong preference for inclusion of all critical facts in the statement of the facts of a brief) 3. Inadequate Introduction a) Summary Of Argument (1) Id. at 343 (presenting survey results reflecting a preference among state appellate judges and a strong preference among federal appellate judges for the inclusion of a summary of the argument in long briefs) b) Repeating Issue Headings (1) Id. at 344 (appellate judges strongly agree that A summary of the argument should not simply repeat the issue headings ) 4. Inadequate Conclusion a) State Remedy Or Outcome Sought (1) Id. at 342 (appellate judges strongly agree that all parties to an appeal should state in the conclusion of their briefs exactly what remedy or outcome they seek) b) Recap Is Optional (1) Id. at 343 (survey results reflecting no consistent preference either way for the inclusion of a merits summary in the conclusion of a brief) 5. Long Sentences a) Id. at 350 (appellate judges strongly agree that Sometimes long sentences are distracting or confusing even if they are grammatically correct ) - 3 -
6. Acronyms a) Id. at 351 (appellate judges agree that Lawyers should try to use shortened names rather than acronyms as abbreviations ) 7. Footnotes a) Id. at 352-53 (appellate judges strongly agree that Substantive arguments should not be made in footnotes and Footnotes should be used sparingly ) 8. Pin Cites a) Id. at 356 (appellate judges strongly agree that Case citations should almost always include a specific page reference ) 9. Broad Oral Argument a) Id. at 379 (appellate judges strongly agree that oral argument is more effective when it is narrowly focused as opposed to attempting to address all issues raised in the briefs ) <1122277v1/DAB> - 4 -