Is there a secret formula to succeed at the Court of Appeal?

An appeal is a landscape, a Minefield. Put one foot wrong, and you are done for. How do you navigate this Minefield safely?

Imagine if you have to cross a minefield. One wrong step is fatal.

What if someone who has already crossed it shows you a Map of the Minefield, teaching you to navigate it safely?

Would you take it?

[1] The Appellate landscape is a Minefield

The ‘Appeal Minefield Map’ has four points:-

The Appellate Landscape;

How appellate judges work;

The Three Questions; and

The Four Rules.

[2] The Appellate Landscape is a Minefield

All appeals are nothing more than a landscape of law and facts.

He who successfully navigates the Minefield in the shortest time, wins.  

[3] Time is fatally short

Assume the Minefield Map will disappear in 20 minutes.

Yet, do not rush into the Minefield. Navigate swiftly and effectively. Use time wisely. You might get extra time , but only if you make the appeal interesting.

[4] How do appellate judges work?

The usual appeal court hears between 40 to 50 appeals a week. Judges read every brief.

If each side lodges 25 pages, each judge has to read 2,500 pages.

Can you do it?

Hint-1: Brevity wins appeals: (less than 10 pages)

If your submissions are unclear, the judges will have to drill right down to the Notes of Proceedings: and they detest it!

Hint-2: Clarity and Footnotes are crucial

Next, the court will ask itself three questions

Q-1:       What is the complaint?

Q-2:       Does the complaint concern an error of law or of fact?

Q-3:       Is the error ‘material’? Does it cause a ‘miscarriage of justice’?

So, when the bench convenes, it will have some idea where the merit of the appeal lies.  

But most judges suspend judgement until the Minefield is crossed.

[5] The Four Rules

Rule-1: Even if an error is clear, an appeal court will not easily allow the appeal.

Rule-2: Something more is needed.

The appeal must show two qualities:

            (1). a serious error; and

            (2). the error causes injustice.

Rule-3: The 80:20 Rule.

Rule-4: Answering Judicial Questions.

As for Second Rule, go read the last section of the Evidence Act 1950.

See what it says.

[6] How can you show an error of law?

There are two types of legal errors: ‘Commission’ and ‘Omission’ errors.

[7] Three Examples of ‘Commission’ Errors

A judge falls into a ‘Commission Error’ if he ‘does something,’ wrong.  

The First example is where the judge decides a major point by using a legal principle that has been: –

  1. overruled (possible);
  2. severely criticised (probable);
  3. or is completely irrelevant (rare).

The Second ‘Commission Error’ occurs where the judge applies a legal principle incorrectly (this is common).

The Third ‘Commission Error’ occurs where there is an ‘internal inconsistency’ within the judgement.

[8] An ‘Omission’ Error occurs if a judge fails to do something crucial

Three examples are, where:-

  1. a judge ignores relevant points; or
  2. he relies on irrelevant points; or
  3. where he analyses crucial evidence incorrectly – this is everyone’s complaint: and yet it does not work 80% of the time!

[9] The ‘80:20’ Rule

This has many meanings. I cite two.

First, assume that 80% of the time, the Minefield will explode: the appeal will fail.

Second, 80% of the time, to succeed, you must show a serious legal not factual, error.

[10] Expect tough questions

Within the first few minutes, judicial missiles will strike the appellant first.

Be prepared.

When questioned, be ready to move any part of the Minefield without straying from your Main Path.

Meet judicial queries politely. Be honest. Be helpful. Do not dodge questions. Do not say, ‘This question is ‘not relevant’’: straight over the cliff! 

If you do not know the answer, say so.

When integrity is at the heart of your advocacy, you will, over time, gain the court’s trust. 

And that is the most prized possession of any advocate.

[11] How should you treat your opponents?

No matter how rude or dishonest your opponent is, be fair.

Be courteous. Maintain decorum. Never lose your cool.  Never get personal.

[12] To Summarise

First, an appellate court will not allow an appeal unless it fits into one of three pigeon-holes:

(a). The ‘legal error’ pigeon hole: where the judgment appealed from is based upon a wrong premise of fact or of law.

(b). The ‘reasoning’ error pigeon hole, where:

       (i). the judge’s reasons are unsatisfactory; or

       (ii). where his deductions are not supported by the law or the evidence.

(c).  the Evidential pigeon hole. This is where the trial judge: –

       (i). was influenced by irrelevant points; or

       (ii). did not give importance to relevant points; or

       (iii). he did not correctly evaluate the evidence.

Second, these errors must lead an appellate panel to one of two conclusions –either that: –

  1. the trial judge was ‘plainly’ wrong; or
  2. no reasonable court could have come to the conclusion he did.

So, there you have it.


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