How to succeed at the Court of Appeal

Are there sure-fire techniques that make it easier to succeed in appeals?  Yes, there are. If appellate counsel don’t practise the Rules of Minimalism, Detachment, or do not ask the right Questions of Law, they’d fail. If they argue at the Court of Appeal burdened with a blunderbuss, they’d fail – because they are kiasu: they shoot at any target, with everything they’ve got.
Here are some techniques that might give you a shot in the arm. Literally.

Appellate judges do not like to disturb the findings of a trial judge. He’d have spent the best part of 6 months, or a year, observing witnesses.  He’d have thought about what orders he should make against your client. Appeal judges like to maintain status quo.

If you wish to change the Court of Appeal’s mind, you need something special.

If you are at the first level of appeal, you’d have to sprint up a 45-degree incline, in 5% of the time you’d spent arguing at the trial court.

If you are at the second – and final – tier of of appeal, confronted by 3 or 5 judges, the incline is 85 degrees. Time is cut in half. Nothing save a serious issue of law will help.

Yet that is but one  point.

There are 30 more to Appellate Success.

Some are my own.  The others are the thoughts of brilliant minds, gathered together by Bryan A. Garner in his runaway success, ‘The Winning Brief’ [3 Ed].  Buy it and read every line.

I have quoted him as much as I can.

These are not the only rules.  Nor need they be read in any order.

Take your pick.

IF YOU ARE THE APPELLANT

Although the following are suggestions aimed at the Appellant’s counsel, they are equally helpful to any Respondent’s counsel.

Tip-1: Master the ‘3-Tells’

They are:-

Tell the judges what you are going to tell them.

Then, tell them.

Lastly, tell them what you have told them.

It is a roadmap.

It enhances a court’s understanding.

Try it.

Tip-2: Create the scene, then pop the question

Tell the court the appeal story in 50 to 75 words – no more.

Then pop the question.

Look at this bald question:

Example-1: ‘Whether a surgeon is liable for negligence if he does not advise a patient on a non-essential element of a surgery.’ (21 words).

Contrast that with this ‘scenario plus question’:

Example-2:  ‘We act for a surgeon. The trial judge’s foundational logic rested on the assumption that every surgeon was required to advise a patient undergoing a gall bladder surgery, every conceivable risk, even non-essential ones.  If a matter is not central to the surgery, and no advice is given on it, and unforeseen injury is sustained, is the surgeon negligent?  That is the question. [64 words].

Which example is lucid? The first is simple.  But it is oversimplified.  The second is the whole appeal.  Everything relevant is there.  Not one word more is needed.

That is what an appeal on a question of law  looks like.

Go straight for the point, but back it up with facts.

Tip-3: Only appeals premised on Questions of Law succeed – those on facts or evidence fail

Keep the appeal limited to questions of law.

Unless they are gargantuan errors, don’t go anywhere near facts or evidence.

Tip-4: ‘Strike for the jugular and let the rest go’ – multiple issues betray a lack of confidence [1]

Use one point – never go beyond three.

‘The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of [complaints] increase. Multiplicity hints at a lack of confidence.’ [2]

Present no more than one, if not, no more than three  ‘… of the strongest claims that the trial court erred.  Take them in order of the importance.’ [3]

‘Appellate advocacy on civil appeals calls for courage: the lawyer’s courage to forgo alluring grounds. The lawyer must make difficult choices. He must make calculated judgements in abandoning points for appeal.’ [4], [5].

‘When … an appellant’s brief [contains] more than 5 points, a presumption arises that there is no merit to any of them.’ [6]

The U.S Judge Learned Hand once extolled the fine example of Charles Neave, the great patent lawyer, for his confidence in choosing arguments:-

‘‘

With the courage which only comes of justified self – confidence, he dared to resist his case upon its strongest point, and so avoided that appearance of weakness and uncertainty which comes of a clutter of arguments. Few lawyers are willing to do this; it is the mark of the most distinguished talent.’ [7]

Tip-5: Locate Pivotal Passages in the Judgement Appealed against

The grounds of Judgement will have one or two Pivotal Passages. They are ‘pivotal’ because the entire fulcrum of the case turns upon them.  Locate them. Demonstrate how a legal error has occurred in those passages. Point it out to the Appellate Judges.

Even omissions can result in an error of law.  Particularly if the Omitted Point was one which should never have been left behind by the trial judge.

Show how it was fatal to the trial judge’s reasoning.

Tip-6: Tell them what your ‘complaints’ are – these are the Deep Issues

The judges want to know what your complaints are.  Don’t keep them waiting.

Wade in.

Identify how many complaints you have.  Do not cross three: or you’d be asking for trouble.

Show immediately what these are.

Say: ‘I have three complaints. 

They are as follows.

Could I please summarise them?’

Then summarise them.

Then show the court which Pivotal Passages contain Errors of Law.

If the trial judge makes an Omission – point out the omission as an Error of Law.

Tip-7: Make Sense – sound reasonable

‘Your whole case, on law and facts, must make sense, must appear as being obvious sense, inescapable sense, sense in simple terms of life and justice’.[8]

The goal of a judge is not merely to reach a decision supported by a rule of law, but to dispense justice  to the parties. Accordingly he will be uncomfortable with an argument based on precedents alone, unless it is clear to him where the equities lie.’ [9]

Tip-8: Replace humdrum phrases with snappy ones

‘Spark interest.’ [10]

‘Think of how many dreary briefs are judges to read in a judicial lifetime. What can you do to make your work sparkle, so that your judge actually looks forward to reading what you have to say?’ [11]

Example 3:  ‘The plaintiff merely takes two paragraphs out of context from the Publication 2348, which is a manual dealing with career opportunities.

Example 4: ‘John merely plucks two isolated paragraphs from the manual.’

Example 5: ‘The trial court made a finding of fact that the abrupt manner in which Johns made his departure from the firm and its subsequent solicitation of the firm’s employees interfered with the firm’s existing contracts with clients in the firm’s prospective business.’

Example 6: ‘The trial court found that the way Johns bolted from the firm and then raided its employees interfered with the firm’s existing contracts and prospective business.’: [15]

‘‘You must write your brief not only to be understood, but if possible, to be relished.’ [12].

‘You need to interest the judges [by your ] brief. You’ve got to make them feel, when they come to the brief, ‘Oh, baby; this is going to be hot!’ And they’ve got to approach the brief with that favourable atmosphere.’ [13]

Tip-9: Make the court dissatisfied with the status quo

‘The appellant’s counsel want the judges to feel dissatisfied, so that they will change the status quo. The Respondents want the judges to feel satisfied – to preserve the status quo.’[14]

Tip-10: In your written submissions, make your point in 90 seconds

On the first page the judge must get:

(1). your stand on the basic question,

(2). the answer to that question, and

(3). the reasons for the answer.

What does a persuasive issue look like?

See example 7:

‘Under federal law, US companies cannot provide ‘payment, goods, or services’ for travel to, or from Cuba.  Libre Air is a Canadian airline.  It has a reciprocal air-mileage programme with Eastern Airways. Through it travellers could redeem points interchangeably between the airlines. Several Canadian citizens flew from Toronto to Havana on Libre Air. They now hope to redeem those miles with Eastern Airlines.  Is it legal for Eastern airlines to provide the Canadian citizens with mileage credit for the travel?’ [80 words].

‘Some lawyers would take at least 10 pages to deliver that information.  And you wouldn’t even find this concise statement at page 10. Instead, you would find the titbits within it strewn amid other facts throughout the first 10 pages. To glean the issue, the judges would have to read slowly, [and] with intense concentration. That’s quite a demand to make upon busy judges.’ [16]

Tip-11: Make citations few and unobtrusive

‘Avoid a paroxysm of citations.’ [17]

‘Use authorities sparingly and only to the extent necessary to support a well-thought-out theory of your case.’[18]

‘Place citations so as to have them available, but out of the way. Always subordinate citations to the statements they support: [19]

‘Any interruption in the flow of language is a source of difficulty and of irritation to the reader.’[20]

See Example 8:

‘In Fitzpatrick v. Illinois Human Rights Commission, 267 III, App.3d, 386, 642 n.8 to 486 (4the District 1994)’, the plaintiff alleged that the employer discriminated on the basis of physical handicap (the plaintiff had been diagnosed with a sleeping disorder), by simply transferring her from the day shift to the night shift. Id at p.7, 642 and 2d at 487

Contrast that with Example 9:

‘In Fitzpatrick the plaintiff alleged that the employer discriminated on the basis of physical handicap (the plaintiff had been diagnosed with a sleeping disorder), by simply transferring her from the day shift to the night shift: Fitzpatrick v. Illinois Human Rights Commission, 267 III, App.3d, 386, 642 n.8 to 486 (4th District 1994, at 7, 642 and 2d at 487).

 Which reads better?

Tip-12: If you want to cite a case, explain what it stands for

‘The purpose of a citation should be explained. The case may be important for its facts, its holdings, its reasoning, its approval of other authority, or of an observation that is a  dictum.

‘It is essential to tell the court exactly how a case is being used.’ [21]

Tip-13: Ask for criticism

A vast majority of cases are decided on written arguments.

Why not focus your energies testing your written argument instead of your oral arguments? [23]

‘Impose what you have written upon friends  for assessment or criticism,’  before it is filed.[22]

It is not an admission of weakness to ask the help of third parties to assess the presentation, and arrangement, of your arguments.

Tip-14: Read your submissions repeatedly

Revise. Proof carefully. Give it to others to proof it.

Some lawyers use bold fonts for parts of a passage.

Others underline. Some italicise.

Some mad people capitalise whole sentences.

Some do all.

That is bad writing.

Open a law book.  Look at how arguments are developed.  See do they physically appear. Are there bolded, italicised or underlined portions?

So please use standard editing marks.[24]

Use Oscola  (Oxford University Standard for the Citation of Legal Authorities). 

That is a standard that we should all aspire towards.

Tip-15: Make the issue as concrete as you can – within 75 words

‘An abstract style is always bad. The sentences should be full of stones, metals, chairs, tables, animals, men, and women.’ [25],[26]

Prof Garner calles it, ‘populating the narrative’.

So, ‘Ahmad’ is preferable to ‘the plaintiff’.  ‘Lee’ is better than ‘the fourth respondent’.

Then again, ‘[t]he statement should show the precise point of substantive law and its applicability to the facts at hand.’

Thus, ‘Was the plaintiff guilty of contributory negligence?’ vaguely indicates a general issue.

[W]ould it not be more helpful to concentrate the courts’ understanding if you state the issue as:

‘The plaintiff’s car struck the rear of the vehicle driven by the defendant. The defendant had made an emergency stop without signalling. Where the plaintiff admits that he could not have stopped his car within a clear distance ahead, is he chargeable with contributory negligence, so as to bar his recovery?’ [27]

See Example 10: (an opening):

‘Under Texas law, an attorney who has ‘committed a crime of moral turpitude’ can be suspended from the practice of law. Phyllis Locke, a Texas attorney, was arrested for possession of illicit drugs. While her case was being investigated, but before she was prosecuted (much less convicted), the State Bar of Texas suspended her law license. Is an arrest without a conviction for a crime of moral turpitude sufficient to justify the suspension? [73 words].

Tip-16: Make your point as simply as possible – never over-simplify [28]

‘A simple, clear, and harmonious style does not come easily. It is a product of much mental sweat and a critical evaluation of force efforts.’ [29]

Lord Denning said, ‘Wooly thinking results in wooly writing.’

Think clearly. Write simply.

Sentences that start, ‘The Learned Judge erred  in law and in fact, and misunderstood the evidence because …’ usually find their way to the bin.

See Example 11:

‘The trial judge analysed  Donohue v. Stevenson correctly, but took a fatal turn when he misapplied and over-stated the law by holding that any and all local authorities cannot be held liable for negligence. There are 3 House of Lords decisions against this holding.  The Court should intervene, and set matters aright’,

That argument sounds far more interesting, even deadly serious.

It has an allure all by itself.

It is compelling.

Tip-17: Avoid long quotations [30]

‘Quotations are the bane of many a brief, and the affliction of many an appellate judge.’ [31]

Just cite the principles. Do not throw a swath of passages at the judges.  Do not expect them to do you a favour by scouring, compass in hand, for the one gem you seek. They’d cast you to the winds.

Tip-18: Quotations detract from your authority as counsel

You should not merely stockpile what others have said.

You’re not a mere quotation-assembler.

If you do that, your writing won’t have a clear analytical line.’ [32].

Paraphrase the judgements.

Summarise them.

Cite them in smaller chunks.

The quotation should act as a catalyst.

It should drive your narrative.

Not act as a brake.

Tip-19: Explain unfavourable arguments against you

Address unfavourable positions at the first available opportunity.

Give them a proper context. Show why they don’t matter.

That way you will mitigate any potential harm that may befall your case when your opponent uses – and he will use them – the unfavourable facts against you. [33]

Tip-20: State the facts dispassionately – by use of a Chronology

Tell the story.[34]

Do that in chronological order.

‘[A] good … statement of facts, passes two essential tests: first, it stands alone.  A reader should understand what the case is about without looking at anything else.

Second, the statement should make the reader take your side. It should be persuasive without being argumentative.’ [35]

So a Chronology is an essential tool.  Place it at the end of your submissions, in an Appendix.

Set out, in one-liners, exactly what happened, in order of time. Show where the relevant documents are. Prove when and how the events occurred.Show where the relevant passages are in the Notes of Proceedings.

Point all that out in the Chronology.

This will help the judges navigate the maze of facts.  They will be ever so grateful.

Even if you lose your appeal, the next time you are there, you’d get a favourable hearing; because they know you are organised and clear.

Or, use the iThoughts app. 

Tip-21: Index your work for court’s navigation

Ensure your submissions have an index right at the front. Most text applications can manage this.

Keep a clear index of documents at your side: both by page number , and by subject index.  Show the judges where the documents related to, e.g., breach of contract are.

Make it easy for the judges.

Tip-22: Oral Argument: the first 90-seconds is all you have – use it well

Time is a premium. The shorter your sentences, the smaller the number of ideas, and greater the clarity, the more the judges will understand.

They are looking for a summary of the case, the issues and your answers.

Don’t waste time by flipping pages.

Unless absolutely necessary, don’t waste time by pointing out caselaw or statutory provisions everyone knows.

Only when they ask, ‘Is there caselaw to support your proposition?’  [that means they are going to rule against you] then say, ‘Yes My Ladies and Lords’, and immediately show them where it is.

Or say, ‘There is no caselaw on this point. I wish to persuade the Court to develop a proposition in this grey area.  I have worked out a proposition premised on a series of  caselaw. Could I please invite Your Lordships to see it?  I have written it down for the court.’ 

Then show them how they should develop it.

Be brave, and be deeply courteous.

But watch the second-hand all the time.

Tip-23: Oral Arguments – summarise your points – do not show evidence or caselaw – not yet!

The moment you get on your feet:

(1) Explain what the problem is,

(2) what are your answers to it, and

(3) why you are right.

Straight off the bat.

Don’t waste time on non-essentials. The judges already have an idea of the essential points; and relevant evidence.

No veering.  No hesitation.

So don’t shuffle papers.

Don’t show authorities.

Don’t drag them into documents.

There is a time for all that.

When you have convinced them, they will ask you:-

‘Where is the relevant document?’

‘Where is the caselaw?

‘What are your answer to the Respondent’s arguments?’ 

That  is the time to show them.

Until then, summarise, summarise, summarise.  Wait for them to take a bite at the line.  Wait.

Don’t dive into the fathomless deeps.

You’ll never surface.

Tip-24: Be ready for questions the court will throw at you

When that happens, don’t dive into documents.  Don’t run off into the Bundle of Authorities.

Watch your tone.

Don’t sound hysterical.

Watch your pace.

Slow down. You are not the KLIA Shuttle.

Loud.

Clear.

Well paced.

Answer the court’s questions directly, and confidently.

Don’t hesitate.

Don’t betray uncertainty.

Be truthful.

It earns many points.

If you do not know the answer, say so.

If you have made a mistake, say so.

And show why it does not matter.

And then say, ‘If I have answered My Lady’s queries, could I please go on to develop my other points?’

By the way, always ask permission for everything.

And, never give even the impression of  misleading the court.

You’d be branded for life.

Have you not seen some counsel who vents his spleen at the Court of Appeal, while the judges look askance?

That is why.

You should have seen Raja Aziz in action:-

The Court would hang on to every word he’d say.

Such courtesy.

Such depth of understanding.

Such humility.

Emulate him.

Tip-25: After showing the law is on your side, don’t stop!

Show evidence that the ruling you seek is just and fair under the circumstances.’ [36]

Make the court comfortable that not only the law, but the facts and evidence favour your case.

But never do this at first.

Do it only after establishing your legal point.

Timing is everything.

Tip-26: Have an answer to every point your opponent might raise

If you are the appellant, you must be able to sink your opponent by pointing to an unfavourable fact, or some legal authority that completely undermines his position.

Be ready with those bullets.

Use them at the right time.

Again, timing is everything.

Tip-27: Check what relief you’d have to ask at the end

Ensure you are not caught napping.

If you win, what relief will you seek?

If you lose, what relief will you ask for to mitigate injury to your client?

Have these points handy.

IF YOU ARE THE RESPONDENT

Tip-28:  Rephrase, consolidate & neutralise the appellant

If you’re the appellant , choose your grounds of complaint with the greatest care.

If you are the respondent – and your opponent ‘has not chosen carefully – then, ‘rephrase, consolidate’ – in such a way that the court has a better grasp of the futility of the appellant’s arguments.[36]

Then neutralise the appellant’s arguments.

Tip-29: Make the Respondent’s Submissions independent

When you are the respondent, ‘make your [written submission] fully intelligible on its own – without assuming that the judges have just read your opponent’s brief: [37].

It must make sense, without any external aid.

It must be a ‘stand-alone’.

Tip-30: Draft Respondent’s Submissions before seeing your opponent’s [38]

When you write your own brief independently, it will help you develop your own case.

It will keep you clear-headed. You won’t be reacting to his brief.  You’d be pro-active.

Only after you have finalised your own submissions, should you look at your opponent’s arguments.

It is at that point you should  ‘fine-tune your own brief and address your opponent’s points.’ [39].

If you put yourself at the mercy of the appellant, you will find yourself in a defensive posture: [40]

Not good!

Tip-31: Rephrase the appeal and make ready for Federal Court Leave Application

If you are responding against a strong appellant, or a strong appeal case, then do a ‘Re-Alignment’ exercise.

Restructure the issue against you in such a way that the Court of Appeal has to answer your question.

If possible, mentally draft your Leave Application Questions even at the High Court stage.

Then ensure that all the judges deal with it at the Court of Appeal; so that you can rely on their answers at a later time. [41]

That will then become subject of a Leave Application – which can then be easily mounted.

So in the End …

These are not the only strategies.

When you are at the Court of Appeal, look at the way other counsel present their arguments.

Ambil yang jernih, buang yang keruh.

That is the only way you’ll learn.

 

 

 

 

[Cover photograph:  Beautiful lady statue on the wall of the Supreme Court in London, UK. Processed in black and white].

 

End Notes

 

[1].      Oliver Wendell Holmes, ‘Speech’, 77 (1934).

[2].      Robert H Jackson, ‘Advocacy before the United States Supreme Court’ 37 Cornell LQ 1, 5 (1951).

[3].      Jordan B Cherrick, ‘Issues, Facts, And Appellate Strategy’: [Appellate Practice Manual 73, 75 (1992).

[4].      Milton Pollack, ‘The Civil Appeal’ In ‘Counsel On Appeal’ 29, 39 (1968’.

[5].      Jones vs. Barnes, 463 US 745, 751 – 52 (1983)

[6].      Ruggero J. Aldisert, ‘Winning an Appeal: better briefs and oral argument one to one (1992)

[7].      Learned Hand, ‘In Memory Of Charles Neave’ In ‘The Spirit Of Liberty 127 – 28 (second edition, 1951). [p. 575, Brian A.Garner, ‘The Winning Brief’ – 100 for Persuasive Briefing In Trial And Appellate Courts’ 3 Ed. OUP [2014].

[8].      Carl Llewellyn, ‘The Modern Approach To Counselling And Advocacy – Especially In Commercial Transactions’ 46 Columbia Law Review 167, 183 (1946).

[9].      Girvan Peck, ‘Writing Persuasive Briefs’ 78 (1984)

[10].    Garner, supra, p.309

[11].    James W McElhany, ‘The Art Of Persuasive Legal Writing’, ABA J. (1996) at 76, 78.

[12].    Ben W Palmer, ‘Courtroom Strategies.’ 199 (1959).

[13].    Garner, supra,  p.681

[14].    Ibid,  p.311

[15].    Ibid,  p.79

[16].    Ben W Palmer, ‘courtroom strategies’ 188 (1959)

[17].    Nathan S Heffernan quoted by Ruggero J Aldisert, ‘Winning an Appeal: Better Briefs and Oral Argument’, 198 (1992).

[18].    Bryan A. Garner, ‘The Elements of Legal Style’ H90 (2nd Ed, 2002), Garner, supra,  p. 200,

[19].    Adam Sherman Hill, ‘Our English’, page 56 (1888). Garner, supra,  p.176

[20].    E. Norman Veasey (as quoted in ‘Judges On Briefing’ 17 (Brian A. Garner, Ed., 2001)

[21].    Garner, supra,  p.691

[22].    Ibid,  p.692,

[23].    Ibid,  p.67

[24].    Emil Chartier [1868 – 1951.

[25].    George W Paton, ‘Textbook of Jurisprudence’, page 214 (1972)

[26]     Albert Tate JR, ‘The Art of Brief Writing: What a Judge Wants to Read’, ‘Appellate Practice Manual’, 197, 202 (1992).

[27].    Garner, supra,  p.148,

[28].    Sumner Ives, ‘A New Handbook For Writers’, 275 (1960).

[29].    Garner, supra,  p.493,

[30].    Ben W Palmer, ‘Courtroom Strategies’ 193 (1959).

[31].    Garner, supra,  p.494

[32].    Ibid,  p.59

[33].    Ibid,  p.525

[34].    ABA J., Jan 1996, 76, 78.

[35].    Garner, supra,  p.680

[36].    Ibid,  p. 573

[37].    Ibid,

[38].    Ibid,  p.578,

[39].    Ibid,  p.579

[40].    Ibid,  p.579

[41].    Ibid,  p.94

 

 

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