This article focuses on what not to do if you wish to prevail in an appellate matter. Part of this is, unfortunately, the painful lessons learned from experience. Other observations here are derived from listening to appellate judges discussing their observations about what irks them most. I write in the sincere hope that your own appellate efforts will be more successful by avoiding the following.
Wait Till the Last Minute
Appellate writing is a distilled product. Because everything in the brief (the preliminary statement, what is included in the record and how the record is organized, the framing of the issue, the statement of facts, etc.) all need to be harmonized to reinforce your argument on appeal; the process simply takes time. Framing the issue, which is perhaps the most important decision you’ll make, is a painful process because you have to “murder your darlings” and look coldly at what precisely is the issue you want the appellate panel to decide. One final thought is that if you want client input or the thoughts of a colleague or friend, you need to give them time to read the draft and to comment upon it. The process of refining and sharpening simply cannot be done in a hurry.
Count on Oral Argument to Carry the Day
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