Upon Further Review

You may be surprised to learn that one of the most useful and informative practice guides for attorneys and law students interested in appellate practice had its origin here in the U.S. Court of Appeals for the Third Circuit. The book is titled “Winning on Appeal: Better Briefs & Oral Argument,” and its author was senior Third Circuit Judge Ruggero J. Aldisert.

The premise for the book, in Aldisert's words, was that if you wanted to learn how to catch fish, who better to give you the best possible perspective than the fish itself? To win on appeal, attorneys must write briefs and deliver oral arguments intended to persuade appellate judges that the attorneys' client should win the appeal. Aldisert's book was perhaps one of the first to try to educate attorneys on how to succeed on appeal from the perspective of a highly experienced appellate judge who would know better than anyone what works and what doesn't.

The first edition of the book appeared on the scene in 1992, which was propitious timing insofar as my career as an appellate practitioner was concerned. From 1989 through 1991, I was serving a judicial clerkship for Third Circuit Judge William D. Hutchinson. The appellate briefs that I read and the oral arguments that I observed during my two-year clerkship gave me an inkling that being an appellate lawyer might just be something that I could be good at.

The clerkship also allowed me to see from the judicial perspective what worked and what didn't work when it came to good advocacy on appeal. And yet, after my clerkship, I was still just a brand new lawyer only two years removed from law school graduation, so having a detailed practice guide written by one of the Third Circuit's most experienced and highly regarded judges often proved indispensable in helping me persuade more senior lawyers concerning how to approach appellate brief-writing and oral argument.

In 2003, Aldisert published the second edition of “Winning on Appeal.” By then, I had been an appellate attorney in private practice for nearly a dozen years, and my reputation for doing good work and knowing a thing or two about how to succeed on appeal was beginning to grow. To my great delight, Aldisert decided to include me among the many lawyers and judges who offered nuggets of advice that were quoted in the second edition of the book. Regardless of how out of place I may have felt to have my advice included right next to advice from lawyers and judges who were the titans of appellate practice, there it was nonetheless.

Sadly, in December 2014, Aldisert passed away at the age of 95. He lived a very full life and accomplished what would later be impossible, relocating his own Third Circuit chambers from Pittsburgh to California for health reasons. In addition to having penned a memoir, he had written numerous other well-known books, including a book on logic for lawyers and opinion writing for judges.

The second edition of Aldisert's “Winning on Appeal” book took a little over 10 years to arrive, and now that Aldisert had passed away, the prospects of another updated edition of this extremely helpful practice guide looked quite bleak indeed. Happily, law professor Tessa L. Dysart and Fifth Circuit Judge Leslie H. Southwick, formerly a judge on the Mississippi Court of Appeals, agreed to join forces to bring into existence a brand new third edition of “Winning on Appeal,” which has just become available for purchase.

The book retains its Third Circuit connection, not only because so much of what Aldisert originally wrote remains intact, but also because the book's brand new foreword is written by U.S. Supreme Court Justice Samuel A. Alito Jr., a former Third Circuit judge who retains a strong knowledge of the history of his former court. The third edition also retains several nuggets of advice from me.

Because a party's appellate brief(s) ordinarily play the most significant role in the outcome of any appeal, approximately two-thirds of the book is devoted to planning and executing a well-written and persuasive brief. The remainder of the book focuses on preparing for and delivering the oral argument of an appeal. If you think that you are someone who already knows all there is to know about these subjects, then you are probably most in need of what this book has to offer. And it almost goes without saying that if you realize your skills as an appellate advocate are still capable of improvement, which is certainly something that is true for all of us, then this book unquestionably can provide helpful guidance and assistance.

In addition to furnishing advice and suggestions from numerous federal and state appellate judges, including Pennsylvania's own Chief Justice Thomas G. Saylor, the book also contains advice from numerous, highly regarded appellate attorneys. I can't think of any other appellate practice guide where one would find advice from attorneys Paul D. Clement, Seth P. Waxman, Miguel A. Estrada, Kyle Duncan (recently nominated to the Fifth Circuit), Peter Keisler and Scott Keller, to name just a few.

As with any other practice book, “Winning on Appeal” is not going to write your appellate briefs or deliver your appellate oral arguments for you. Nevertheless, given how many attorneys enjoy handling cases on appeal and seek to become as good at it as possible, this book definitely can provide you with the ideas and advice necessary to excel as an appellate advocate. What you do with that advice is of course up to you, but it's far better to have it in mind then never to have considered it.

I cannot think of any other single book that is more focused on how to successfully handle an appeal from start to finish from the practitioner's perspective. To be sure, whether any specific piece of advice should be followed in your particular appeal is something that only you as the advocate can decide. But, as I said at the outset, this is a book that I have been glad to have by my side throughout my career as an appellate advocate, and I am confident you will feel the same way, too.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove and can be reached at 215-830-1458 and via email at [email protected]. You can access his appellate web log at http://howappealing.abovethelaw.com/ and via Twitter @howappealing.

Upon Further Review

You may be surprised to learn that one of the most useful and informative practice guides for attorneys and law students interested in appellate practice had its origin here in the U.S. Court of Appeals for the Third Circuit. The book is titled “Winning on Appeal: Better Briefs & Oral Argument,” and its author was senior Third Circuit Judge Ruggero J. Aldisert.

The premise for the book, in Aldisert's words, was that if you wanted to learn how to catch fish, who better to give you the best possible perspective than the fish itself? To win on appeal, attorneys must write briefs and deliver oral arguments intended to persuade appellate judges that the attorneys' client should win the appeal. Aldisert's book was perhaps one of the first to try to educate attorneys on how to succeed on appeal from the perspective of a highly experienced appellate judge who would know better than anyone what works and what doesn't.

The first edition of the book appeared on the scene in 1992, which was propitious timing insofar as my career as an appellate practitioner was concerned. From 1989 through 1991, I was serving a judicial clerkship for Third Circuit Judge William D. Hutchinson. The appellate briefs that I read and the oral arguments that I observed during my two-year clerkship gave me an inkling that being an appellate lawyer might just be something that I could be good at.

The clerkship also allowed me to see from the judicial perspective what worked and what didn't work when it came to good advocacy on appeal. And yet, after my clerkship, I was still just a brand new lawyer only two years removed from law school graduation, so having a detailed practice guide written by one of the Third Circuit's most experienced and highly regarded judges often proved indispensable in helping me persuade more senior lawyers concerning how to approach appellate brief-writing and oral argument.

In 2003, Aldisert published the second edition of “Winning on Appeal.” By then, I had been an appellate attorney in private practice for nearly a dozen years, and my reputation for doing good work and knowing a thing or two about how to succeed on appeal was beginning to grow. To my great delight, Aldisert decided to include me among the many lawyers and judges who offered nuggets of advice that were quoted in the second edition of the book. Regardless of how out of place I may have felt to have my advice included right next to advice from lawyers and judges who were the titans of appellate practice, there it was nonetheless.

Sadly, in December 2014, Aldisert passed away at the age of 95. He lived a very full life and accomplished what would later be impossible, relocating his own Third Circuit chambers from Pittsburgh to California for health reasons. In addition to having penned a memoir, he had written numerous other well-known books, including a book on logic for lawyers and opinion writing for judges.

The second edition of Aldisert's “Winning on Appeal” book took a little over 10 years to arrive, and now that Aldisert had passed away, the prospects of another updated edition of this extremely helpful practice guide looked quite bleak indeed. Happily, law professor Tessa L. Dysart and Fifth Circuit Judge Leslie H. Southwick, formerly a judge on the Mississippi Court of Appeals, agreed to join forces to bring into existence a brand new third edition of “Winning on Appeal,” which has just become available for purchase.

The book retains its Third Circuit connection, not only because so much of what Aldisert originally wrote remains intact, but also because the book's brand new foreword is written by U.S. Supreme Court Justice Samuel A. Alito Jr., a former Third Circuit judge who retains a strong knowledge of the history of his former court. The third edition also retains several nuggets of advice from me.

Because a party's appellate brief(s) ordinarily play the most significant role in the outcome of any appeal, approximately two-thirds of the book is devoted to planning and executing a well-written and persuasive brief. The remainder of the book focuses on preparing for and delivering the oral argument of an appeal. If you think that you are someone who already knows all there is to know about these subjects, then you are probably most in need of what this book has to offer. And it almost goes without saying that if you realize your skills as an appellate advocate are still capable of improvement, which is certainly something that is true for all of us, then this book unquestionably can provide helpful guidance and assistance.

In addition to furnishing advice and suggestions from numerous federal and state appellate judges, including Pennsylvania's own Chief Justice Thomas G. Saylor, the book also contains advice from numerous, highly regarded appellate attorneys. I can't think of any other appellate practice guide where one would find advice from attorneys Paul D. Clement, Seth P. Waxman, Miguel A. Estrada, Kyle Duncan (recently nominated to the Fifth Circuit), Peter Keisler and Scott Keller, to name just a few.

As with any other practice book, “Winning on Appeal” is not going to write your appellate briefs or deliver your appellate oral arguments for you. Nevertheless, given how many attorneys enjoy handling cases on appeal and seek to become as good at it as possible, this book definitely can provide you with the ideas and advice necessary to excel as an appellate advocate. What you do with that advice is of course up to you, but it's far better to have it in mind then never to have considered it.

I cannot think of any other single book that is more focused on how to successfully handle an appeal from start to finish from the practitioner's perspective. To be sure, whether any specific piece of advice should be followed in your particular appeal is something that only you as the advocate can decide. But, as I said at the outset, this is a book that I have been glad to have by my side throughout my career as an appellate advocate, and I am confident you will feel the same way, too.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove and can be reached at 215-830-1458 and via email at [email protected]. You can access his appellate web log at http://howappealing.abovethelaw.com/ and via Twitter @howappealing.