August 21, 2017

One of the classic tomes for bettering appellate practice – the lawyering of briefing and argument – is Judge Ruggero Aldisert’s WINNING ON APPEAL.  The 2017 update, by Law Professor Tessa Dysart and Federal Appellate Judge Leslie Southwick, is a largely worthwhile text for both the seasoned appellate practitioner and the lawyer who only occasionally handles appeals.

WINNING ON APPEAL is at its best when it discusses discrete aspects of brief writing – the design and phrasing of the question(s) presented; the statement of facts; and the summary of argument.  For the statement of facts, the reminders are simple and poignant – to tell your story, and to “mak[e] the judge look forward to working on the case.”  The caveat is the appellate judge’s perspective – your statement will be read after the appellate judge has read the trial court summary – and be wary if they differ drastically.

For the tasks of drafting questions presented and factual histories, while the text is useful the real benefit comes in the appendices to WINNING ON APPEAL.  Multiple examples of each component of a brief are included, with brief but insightful critiques.

For oral argument preparation, the best advice is that the “very process of preparing for the worst onslaught will strengthen your hand.”  Related is the injunction to “identify the single best response to each potential vulnerability.”  The follow-up advice is to identify and ‘road-test’ the rule that you seek to have the Court apply.  What was missing here is the added advice to seek the narrowest rule – while a lawyer may want to effect systemic change, the narrower the rule/relief sought, the more likely the chance of winning.  An oral argument checklist is a useful tool for the beginner and mid-experience practitioner, particular with its reminders to find the “now or never” points needed to win, to try to limit argument to two or at most three points, and to know what you may concede “without undermining the heart of your appeal.”

So why describe this as “largely” worthwhile?  In one sense the book holds too much, with sections on jurisdiction and perfecting an appeal that will be a distraction to most practitioners (but may prove useful if the book is adopted for Law School use).  More importantly, it at times preaches appellate advocacy as a solely reason-based exercise, opening with the statement that “[t]he trial advocate is not limited to reasoned argument, but rather may speak of…shamelessly emotional matters…The appellate lawyer carries a different sample case.  Principally, the law is argued…”

Yes, but.  Emotion must be understated, but emotions linked to fairness, injustice and the impact of the case on discrete populations may be as important as thoughtful analysis, analogic thinking, and quality writing.

SO, the book is “largely” worthwhile.  But one added encomium is warranted.  A foundational premise of the book is that “most advocacy by brief or oral argument cannot be rated as ‘good,’ let alone “excellent.’”  So for the larger audience, and for the betterment of appellate advocacy, lawyers desperately need to read and apply WINNING ON APPEAL.