"It's Not About You": Hot Tips for Better Appellate Briefs and Argument from MBA Panel
Today, I attended, by web, the MBA's Program - Feed Your Mind: Appellate Practice and Procedure. It was a practical and frank panel discussion of dos, don'ts and tips for better practice, briefs and argument. I have summarized them below. Disclaimer: These are my words and only my words based on what I heard, unless there are quotation marks. This is not a transcript (and, admittedly, my web session crashed once). Any commentary is just my own opinion. None of this is legal advice. Seriously? Come on.
From the Clerk's Office:
Assistant Clerk Patricia Malone, Esq. spoke and gave an array of helpful tips, some dos, don'ts and precautionary tales, and a few points of information.
You really, really, really should sign up for e-notification (form available here). Do it. Don't think about it. Just do it.
A notice of appeal should reference all orders or judgments from which you are appealing AND the date of each order or judgment.
If a post-judgment motion is filed within ten days of a judgment, any notice of appeal filed in the interim is void and a new notice of appeal must be filed after the trial court rules on the post-judgment motion.
When the record is assembled by the trial court and you receive notice of assembly of the record, the Appeals Court does not get "everything" - it gets notices of appeal, a copy of the docket and perhaps a few other things. Include everything that the panel needs to look at in the Record Appendix.
Docketing fees must be received by (not sent to) the Appeals Court on or before the tenth day after Notice of Assembly of the Record.
Docketing statements are important. They lay out a bit about the case and also are very important to flag the existence of impounded materials.
Notices of appeal are typically due 30 days after an order or judgment issues, unless a statute says otherwise. When the time is fixed by statute, the Single Justice cannot enlarge the time. Otherwise s/he can enlarge the time by up to a year.
File motions to enlarge the time to file a brief before the deadline to file the brief.
The clerk's office is looking at procedural defects (like a late notice of appeal) closely to attempt to deal with them before an appeal is fully briefed.
The judges do not like it when your brief is more than 50 pages. (They really don't like it. See below).
It is important to have your addendum in order because the judges really rely on them to quickly reference the order or judgment appealed from, and any applicable statutes or regulations.
Post-argument Rule 16(l) letters should not contain argument unless the panel at argument specifically requested that the parties provide a post-argument letter on specific points. If you send in a Rule 16(l) letter that contains argument, the clerks will alert the panel to this fact and the panel may strike it as a result. If the panel requested the letter, you should say so in the letter when you send it in. Otherwise, Rule 16(l) letters should be used for, well, what Rule 16(l) says they should be used for: citing additional authority, and no more.
A very practical tip when you plan to seek further appellate review, but need more time: file a motion to stay issuance of rescript, but you now need to [e-]file this motion in the SJC, not in the Appeals Court.
From the Court (Hon. William J. Meade):
Appeals Court Justice William J. Meade spoke with the obvious benefit of both his years of service on the court and years of practice as an appellate advocate before his appointment to the bench.
Tips for Briefs
Briefs should get to the point quickly and try to keep from writing a very long brief. (Wait, what? But sometimes longer briefs are better!). Justice Meade emphasized the importance of including a good introduction, especially in a complex case and underscored that the summary of the argument is important and can be used to steer the reader to the most important points. He even suggested including one whenever the argument is more than ten pages. (The rules require a summary of argument if the argument is more than 24 pages).
Each brief should have an accurate statement of the case, outlining what was alleged/charged, the status of all counts, etc. and each sentence should end with a citation.
Be honest, but persuasive in the statement of the facts. NEVER EVER write a fact statement that is merely a chronology of each witnesses' testimony.
Be aware of and address the standard of review. Deal with it.
The reply brief is not an opportunity to rehash or get in the last word. You do not have to file one. You can if there is a need to deal with a new issue, but Justice Meade pointed out, you may want to save that ammunition for oral argument.
Tips for Oral Argument
Speaking of oral argument, Justice Meade said it best: "It's not about you." It is about the panel. It's not your moment in the spotlight. It is a chance to convince three busy judges that you have the better argument.
Read the record, learn the record, know the record, live the record. You should be able to cite to the record accurately and quickly on important facts and events.
And be honest. "Don't lie to us," says Justice Meade. You will lose credibility with the judges and the court.
Arguing attorneys should know the important cases inside and out. The facts and the law.
Know who is on your panel. Research the panel members. Go watch an argument they are sitting on. Find out what they have written in the past. If it is on point, know it. Be able to talk about. If it seems bad for you, know how to explain it isn't bad for you. In other words, DO YOUR HOMEWORK.
And more homework. Moot your arguments, formally or informally, before the real thing. Even if you have argued many appeals before.
Do not make a lengthy recitation of the facts, repeat your brief or otherwise assume the judges haven't read the parties' submissions. They have. Move on. Get right to it.
If there is a straightforward way for the Court to rule in your favor, tell the panel right up front. For example, if there is a procedural defect, or the court can avoid reaching a constitutional issue or an issue argued by the other side was not raised below, tell them at the beginning of your argument.
Answer the judges' questions. Even the bad ones. Even the hard ones. Even the hypothetical ones. Don't fight the question. Never say, "I will get to that in a minute." Get to it now. And never try to avoid the question by saying, "that's not my case." The judges know that. They are trying to make law. They are testing the boundaries. And your arguments.
Do not interrupt or talk over the judges. No brainer.
Oh, um, don't read your argument! In fact, Rule 22(c) states, "Counsel will not be permitted to read, except briefly, from briefs, records, prepared statements, records or authorities."
Here is a good one. Do not argue to the panel like they are a jury. They are not robots, but they are not going to decide the case based on emotion. What you may find works at trial may signal lack of merit on appeal. Not every great trial lawyer is a great appellate lawyer. As Justice Meade points out, trial work and appellate work require different skill sets.
Do not overstate or self-assess your case. Let the facts and the law do the talking.
Do not engage in ad hominem attacks on your opponent. Appellate argument is "not a street fight."
Other things you may want to know:
Asst. Clerk Malone estimated that without party-requested extensions, the Appeals Court process from docketing to decision typically takes about a year. Once a case is fully briefed, it is usually heard within 4-5 months.
You can sign up to be on the Mass Appeals Court electronic mailing list to receive announcements of important items, including weather closings, amicus requests, the upcoming e-filing pilot program. You can sign up by sending an email to MassAppealsCourt-Join@jud.state.ma.us.
The Appeals Court recently began issuing amicus announcements.
The Appeals Court will soon be starting an e-filing pilot program. It will allow you to file your appeal and pay your docketing fee on line and to file various other papers as well. Each transaction will incur a $7 fee. Stay tuned for more.
Mass. R. App. P. 8 and 9 are being reviewed and possibly revamped.