Over the course of our combined many years on the appellate bench, we've observed a lot and come up with a number of tips for appellate advocates. Almost all apply whether the arguments are before the Connecticut Supreme Court or the U.S. Court of Appeals for the Second Circuit or any other appellate court. The only significant differences between arguing before the Connecticut Supreme Court and the Second Circuit are related to the shorter argument times allowed at the Second Circuit.

We are also providing some particular advice at the end of this article for remote arguments now required by the appellate courts.

Briefs and Appendices

When you first begin drafting your brief, start with an eye to your oral argument. You should develop a theme for your argument and it should be consistent with the approach of your brief. While appellants have the heavier burden of convincing the appeals court to reverse the trial court, this tip is helpful for both sides. If a brief is being drafted by the junior lawyers in the firm, you should provide this guidance to those lawyers and keep a close eye during the drafting process.

The standard of review of the appellate court is often critical. For instance, it is easier for appellants to argue points of law that the trial court got wrong than to argue that the trial court abused its discretion on a factual finding or evidentiary ruling. Make sure the brief clearly articulates the standard of review and, if the parties disagree on the standard, you should advocate your position at oral argument—it could make the difference in how the case is decided.

Don't be afraid to point out that the law is unsettled or unclear in prior decisions of the appellate court, and that this is an opportunity to clear it up (in your favor, of course).

Remember in writing the brief that the appellate court is likely comprised of generalists, not specialists in the particular area of the law you are dealing with. The mark of great litigators is to take a highly complicated area of the law and have others understand it, whether at trial or on appeal. Simplify, simplify, simplify. Have someone not in your area of expertise review the draft brief to see if it is understandable to the rest of us.

At the beginning of the brief lay out a road map for your argument so that the judges will see where you are going at the outset. After providing the road map, start with your most important issue, and for appellants, the one you are most likely to succeed on. Appellees should not be locked into the road map presented by the appellant, and should present their own overview of how they want the court to think about the case.

The length of the brief: believe us, the court will appreciate it if it's only as long as it needs to be. Don't use the page or word limits if you don't need to. Also, only recite the procedural background and those facts that are necessary to your argument; otherwise, they just produce a fog for the judges to cut through. The same advice applies to your appendix. Other than the documents you're required by court rule to include, only put in those documents—or parts of them—that really matter. Remember that the judges use electronic case dockets too, and they can always look to the documents below that were electronically filed. One of the federal circuits has even adopted a rule that the joint appendix should not include documents available on the electronic docket.

Read and be well aware of all the court decisions in your opponent's brief. That's right, all, including those in the footnotes. Of course, know all the decisions the appellate court has issued in your area, and especially those written by the members of the panel you will be before.

Oral Arguments

In the Second Circuit, always ask for oral argument. It's not supposed to matter whether your appeal is argued or taken on submission, but it can make a difference. For example, the judges have to prepare more for orally argued cases. Also, why not ask for argument? You get better at appellate advocacy every time you argue, and when you are convincing future clients you're the right lawyer for them, it matters how many appellate arguments you've had.

The tone of your argument (and your brief) should be that you are persuading the appellate court that you are correct. Vitriol, hyperbole, and personal accusations don't help and often turn the judges against you. The judges all want to come to the right and just conclusion in your appeal, and persuading them you're correct is what appellate advocacy is all about.

When a judge starts to ask you a question, stop, look, and listen. Don't talk over the judge, and make sure you pay attention to what the judge is specifically asking. Do your best to answer the question with a yes or no, and then explain your answer. Concede what you can while standing your ground where you must; remember, the judges are lawyers, too, and understand that at times you just have to protect your client. Give a lot of thought to this concession question before the argument.

In preparing for your argument, the amount of time you've been given to argue matters. In the Connecticut Supreme Court you are typically given 30 minutes, while at the Second Circuit you usually only have 10. That greatly affects how you present your argument and what written outline you should have with you. For example, you may get many questions and have little time for your prepared remarks. But organize your notes so that at the end you can still finish strongly.

Mooting your argument is critical. Make sure you have lawyers asking you tough questions, not newer lawyers afraid to take you on. Every moot we have seen made for a better argument later. You lose some perspective as you prepare for argument, and the moot helps to bring you back to the issues that really matter.

The argument in all likelihood will not go according to plan. That's OK. The most important thing is that you get out your most important points. This sounds simple. It's not. You should have thought carefully and critically about what those points are before you arrive at the courtroom and how you can weave them into the argument even if you are being peppered with questions. This is another reason that mooting is essential.

Emphasize at the end of your argument that you are looking for a fair and just decision, consistent with the law of the court. Judges all want to do the right thing, and it's important to show that there are real clients out there that need the just result. At the same time, make sure you tell the court of the consequences of the decision you are looking for beyond the parties in that particular appeal. Appellate judges are always concerned about the effects of their decisions beyond the parties before them.

Particular Advice for Remote Arguments

Most appellate courts now require remote arguments as a result of the COVID-19 pandemic. Some, including the Connecticut Appellate Courts, are proceeding with video links, but the Second Circuit is audio only. We have some general advice for appellate arguments during this time.

Carefully review the website or court orders for the particular court. Courts have very different procedures that apply. The Second Circuit, for example, has placed on its website the orders entered by the chief judge, and they are: oral arguments are proceeding, but audio only, including for the judges; no paper briefs are permitted, all briefs are filed online only; oral arguments are livestreamed through a link on the website; and automatic filing extensions are no longer being granted.

As to tips for remote arguments. First, you can't rely on the light system in the Second Circuit to let you know how much time you have remaining because your argument is audio-only, so have your own system to let you know how much time you have left. In the Connecticut Appellate Courts, one of the justices will flash a card when you have limited time left and when you have exhausted your time. Second, in the Second Circuit the judges cannot see the lawyers or each other, which means there are no visual cues that one of the judges wants to ask a question. It appears from our review of the remote arguments that the questioning is more structured than when live.

The U.S. Supreme Court is proceeding with questioning in order of seniority, but it seems at the Second Circuit that the presider is asking each judge if he or she has any questions, and at times a judge is simply posing questions during the lawyer's presentation. Even where there is video, it is best to pause an extra beat before answering questions to make sure the judge has completed his or her thought. Third, be prepared to make an initial uninterrupted presentation for three minutes or so. Fourth, make sure your audio connection works properly. You'll receive instructions from the clerk ahead of time, but try to do some type of rehearsal if it is not offered by the court. Fifth, and perhaps most important, listen to some online arguments ahead of time.

Christopher F. Droney is a retired Judge of the U.S Court of Appeals for the Second Circuit, and Chase T. Rogers is a retired chief justice of the Connecticut Supreme Court. Both are partners at Day Pitney.