Sunday, January 23, 2011
“Credibility’s Power: Appellate Lawyers Should Be Forthright in Addressing Their Cases’ Weaknesses” is the title of Pennsylvania attorney Howard Bashman’s article in the January 18 edition of the Legal Intelligencer. The article also appears on his blog http://howappealing.law.com Mr. Bashman writes:
From the perspective of the judges, an appellate advocate who was unwilling or unable to address and perhaps even neutralize apparent weaknesses in his or her client's case probably lacks the ability to assuage the judges' concerns about thoseweaknesses. Thus, far from helping their client's case by engaging in a game of dodge ball with the judges, the advocate is instead sending the signal that no response helpful to the client's position exists.
Of course, by the time an appeal reaches oral argument, the judges assigned to decide the case may already have developed firm views about the case and how the appeal should be decided. Those pre-argument views will be based on the appellate judges' examination of the briefs filed on appeal, the trial judge's opinions, and important portions of the record developed in the trial court.
The manner in which a party's appellate briefs depict the facts of the case, what happened before the trial court, and the applicable law will play perhaps the most important role in establishing that party's, and the advocate for that party's, credibility before the appellate court. In the same way that the lawyer who evades difficult questions at oral argument is likely to be viewed by the judges as evasive, a party whose appellate brief resorts to misrepresenting the facts and the law is unlikely to convey to the appellate judges that the party has a strong likelihood of prevailing on appeal.
One might think this advice is old hat and unnecessary today. However, Mr. Bashman , an accomplished appellate lawyer, states that he repeatedly runs into briefs from highly respected firms that misrepresent the case law. Maybe we need to remind our students of the fine line between zealous advocacy and excessively zealous and unprofessional advocacy.