Post by Anja Nieser on Sept 10, 2006 22:20:44 GMT -5
Quality and Quantity on Appeal
When it comes to handling appeals, as in so many other areas of the law,
some lawyers are more talented than others. Three of the most important
skills that a highly effective appellate lawyer must possess are: (1) the
ability to select the best issues to raise on appeal; (2) the ability to
perform top-notch legal research and analysis to ensure that the issues
are argued in the most effective manner possible; and (3) the ability to
present the arguments and background about the case in writing and orally
to the appellate judges in a way that will persuade the court of the
correctness of the client's position.
Although these days many clients are justifiably interested in having a
highly qualified appellate advocate on their side when a case heads to
appeal, there are a substantial number of cases where the skill of
appellate advocacy, or absence thereof, should not make any difference to
the result. To begin with, when deciding an appeal, the appellate court's
goal is not to rule in favor of the party whose attorney impresses the
court as most talented; rather, the goal is to decide the case correctly,
according to applicable law, regardless of whether that means ruling for
or against the side with the more talented appellate advocate.
Thus, cases where the quality of the appellate advocates matters little if
at all are those in which the issues on appeal can only be resolved one
way given applicable precedent. If an appeal must be decided a certain
way, it should not matter that the attorney arguing for the wrong result
is much more talented than the attorney who is advocating the proper
outcome. An appellate court's duty is to reach the right outcome
regardless of the relative talent of the lawyers on appeal.
By contrast, in a case where existing precedent does not govern or
foreordain the result, and thus the case could legitimately be decided in
favor of either side of the dispute, it could matter a great deal which
side's appellate attorney is more talented. Moreover, if the best issues
to raise on appeal are not selected; if applicable precedent is not found,
evaluated, and applied properly and advantageously; and if the reasons why
the court should rule in the client's favor are not conveyed in writing
and orally in a persuasive manner, an appellate court may be stymied in
its efforts to determine the proper outcome of the appeal.
In any event, the effect of quality of advocacy on an appellate court's
decision-making process cannot be appreciated without also considering the
impact of quantity. In other words, one must also understand the impact of
the overwhelming quantity of pending cases that now confront most
appellate judges. University of Richmond Law Professor Law Professor Carl
Tobias recently wrote, in an essay opposing a split of the 9th U.S.
Circuit Court of Appeals, that federal appellate courts today offer "a
2-tier system of justice, whereby 20 % of appeals receive full
consideration -- namely oral arguments and published opinions -- and 80 %
do not."
And Senior 3rd Circuit Judge Ruggero J. Aldisert, in a written interview
that I conducted with him in 2003, spoke of "assembly-line justice" caused
by the crushing caseload confronting appellate courts. According to
Aldisert, "You must understand that the case you file with us moves along
an assembly line of over one case every 4.9 hours. Think about it. That's
the time allotted to your case. In that time, the judge must read the
briefs, research the law, perhaps hear argument, conference with
colleagues, make a decision, write an opinion or order, examine draft
opinions written by other judges, and at the same time study motions in
other cases or petitions for rehearing. And, of course, travel to the
court, check into the hotel. Answer the phone. One fully briefed case for
decision every 4.9 hours."
The scarcity of time in which appellate judges must determine what the
correct answer is in each case creates a more urgent need for a high
quality appellate presentation. It is easier for appellate judges to
determine the lawful outcome of an appeal if the case is well-briefed and
well-argued by both sides. By contrast, if the party that deserves to win
an appeal based on existing law does an especially poor job of
communicating that fact to the appellate court, it is possible in the
press of time and the crush of other work that the appellate judges may
fail to reach the proper outcome. In such an instance, the poor quality of
appellate lawyering on behalf of the party that deserved to win the appeal
would be to blame.
In the real world, appellate judging differs significantly from a law
school moot court competition. Actual appellate courts are not supposed to
enter judgment based on which party has the most talented appellate
advocate.
Rather, an appellate court must decide cases in accordance with the law,
even if that means that the party with the less talented appellate lawyer
ends up prevailing.
Although the quality of an appellate lawyer's presentation is not, in and
of itself, the basis on which appeals should be decided, it nevertheless
may significantly influence the result. This is because selecting the
proper issues on appeal, determining which legal arguments are likely to
prove most persuasive and effective, and then communicating those
arguments in a manner that is both easy to understand and convincing can
make all the difference between a win and a loss on appeal.
Because appellate judges are strapped for time due to a crushing caseload,
an appellate court may not always be willing or able to employ the effort
necessary to reach the correct outcome in the absence of appropriate
assistance from the attorneys. This is the unfortunate reality of
appellate litigation today. Thus, while the quality of a party's appellate
presentation does not necessarily guarantee success on appeal, the lack of
a quality appellate presentation may guarantee defeat.
(source: Law.com --Howard J. Bashman operates his own appellate litigation
boutique in Willow Grove, Pa., a suburb of Philadelphia)
When it comes to handling appeals, as in so many other areas of the law,
some lawyers are more talented than others. Three of the most important
skills that a highly effective appellate lawyer must possess are: (1) the
ability to select the best issues to raise on appeal; (2) the ability to
perform top-notch legal research and analysis to ensure that the issues
are argued in the most effective manner possible; and (3) the ability to
present the arguments and background about the case in writing and orally
to the appellate judges in a way that will persuade the court of the
correctness of the client's position.
Although these days many clients are justifiably interested in having a
highly qualified appellate advocate on their side when a case heads to
appeal, there are a substantial number of cases where the skill of
appellate advocacy, or absence thereof, should not make any difference to
the result. To begin with, when deciding an appeal, the appellate court's
goal is not to rule in favor of the party whose attorney impresses the
court as most talented; rather, the goal is to decide the case correctly,
according to applicable law, regardless of whether that means ruling for
or against the side with the more talented appellate advocate.
Thus, cases where the quality of the appellate advocates matters little if
at all are those in which the issues on appeal can only be resolved one
way given applicable precedent. If an appeal must be decided a certain
way, it should not matter that the attorney arguing for the wrong result
is much more talented than the attorney who is advocating the proper
outcome. An appellate court's duty is to reach the right outcome
regardless of the relative talent of the lawyers on appeal.
By contrast, in a case where existing precedent does not govern or
foreordain the result, and thus the case could legitimately be decided in
favor of either side of the dispute, it could matter a great deal which
side's appellate attorney is more talented. Moreover, if the best issues
to raise on appeal are not selected; if applicable precedent is not found,
evaluated, and applied properly and advantageously; and if the reasons why
the court should rule in the client's favor are not conveyed in writing
and orally in a persuasive manner, an appellate court may be stymied in
its efforts to determine the proper outcome of the appeal.
In any event, the effect of quality of advocacy on an appellate court's
decision-making process cannot be appreciated without also considering the
impact of quantity. In other words, one must also understand the impact of
the overwhelming quantity of pending cases that now confront most
appellate judges. University of Richmond Law Professor Law Professor Carl
Tobias recently wrote, in an essay opposing a split of the 9th U.S.
Circuit Court of Appeals, that federal appellate courts today offer "a
2-tier system of justice, whereby 20 % of appeals receive full
consideration -- namely oral arguments and published opinions -- and 80 %
do not."
And Senior 3rd Circuit Judge Ruggero J. Aldisert, in a written interview
that I conducted with him in 2003, spoke of "assembly-line justice" caused
by the crushing caseload confronting appellate courts. According to
Aldisert, "You must understand that the case you file with us moves along
an assembly line of over one case every 4.9 hours. Think about it. That's
the time allotted to your case. In that time, the judge must read the
briefs, research the law, perhaps hear argument, conference with
colleagues, make a decision, write an opinion or order, examine draft
opinions written by other judges, and at the same time study motions in
other cases or petitions for rehearing. And, of course, travel to the
court, check into the hotel. Answer the phone. One fully briefed case for
decision every 4.9 hours."
The scarcity of time in which appellate judges must determine what the
correct answer is in each case creates a more urgent need for a high
quality appellate presentation. It is easier for appellate judges to
determine the lawful outcome of an appeal if the case is well-briefed and
well-argued by both sides. By contrast, if the party that deserves to win
an appeal based on existing law does an especially poor job of
communicating that fact to the appellate court, it is possible in the
press of time and the crush of other work that the appellate judges may
fail to reach the proper outcome. In such an instance, the poor quality of
appellate lawyering on behalf of the party that deserved to win the appeal
would be to blame.
In the real world, appellate judging differs significantly from a law
school moot court competition. Actual appellate courts are not supposed to
enter judgment based on which party has the most talented appellate
advocate.
Rather, an appellate court must decide cases in accordance with the law,
even if that means that the party with the less talented appellate lawyer
ends up prevailing.
Although the quality of an appellate lawyer's presentation is not, in and
of itself, the basis on which appeals should be decided, it nevertheless
may significantly influence the result. This is because selecting the
proper issues on appeal, determining which legal arguments are likely to
prove most persuasive and effective, and then communicating those
arguments in a manner that is both easy to understand and convincing can
make all the difference between a win and a loss on appeal.
Because appellate judges are strapped for time due to a crushing caseload,
an appellate court may not always be willing or able to employ the effort
necessary to reach the correct outcome in the absence of appropriate
assistance from the attorneys. This is the unfortunate reality of
appellate litigation today. Thus, while the quality of a party's appellate
presentation does not necessarily guarantee success on appeal, the lack of
a quality appellate presentation may guarantee defeat.
(source: Law.com --Howard J. Bashman operates his own appellate litigation
boutique in Willow Grove, Pa., a suburb of Philadelphia)