Thursday, September 29, 2022
A good reputation is one of the most valuable assets a lawyer can have. Establishing and maintaining credibility as an appellate advocate is especially important. In addition to generally wanting an appellate court to think well of you, credibility plays an important part in being persuasive.
Appellate advocates often appear in the same courts over and over. So, what are ways you can ensure that you have credibility with those courts?
1. Be a zealous advocate. Make a substantive effort for your client. Within the bounds of ethics and professionalism, use tools of persuasion. Use confident language and seek to minimize damage from difficult facts and cases without ignoring them.
2. Exhibit intelligence. There's no real substitute for a good, logical argument. An appellate court will think more of your future arguments when it is convinced that it can generally rely on what you say. You can establish credibility by making persuasive arguments that show strong legal researching and writing skills.
3. Follow all applicable ethics rules. This really is the minimum you can do, and you should do more. Many rules of professional responsibility seem geared toward trial practice. But some are very relevant to appellate work as well. The two most obvious rules that should be important to appellate advocates are found in Rule 3.3 of the Model Rules of Professional Conduct:
(a) A lawyer shall not knowingly :
(1) make a false statement of fact or law or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel[.]
Although fact statements in an appellate brief can and should be subtly persuasive, they can't stretch the facts. Even if you inadvertently state a fact incorrectly, you should correct the error with the court.
Interpretations of case law that pass the "straight face" (or "smell") test also are acceptable, but misstatements of law must be corrected. And if you find a case--especially after completing a brief or oral argument--that says "you lose," you must bring that to the attention of the court.
In the end, there may be some room for interpretation of these rules (for instance, whether an unpublished opinion can constitute legal authority that is "directly adverse" to your client's position). But it's usually best to err on the side of caution.
4. Go beyond the ethics rules; be professional. Go beyond the ethics rules. Some things simply aren't covered by the rules of professional responsibility, and crafty lawyers can sometimes abuse or circumvent the rules. Don't be one of those lawyers.
5. Know when to concede points. Similar to the ethical duty to disclose adverse authority, it is important to know when the concede points. If you can do so without conceding your overall case, that's great. Within the bounds of zealous advocacy, there may also be rare occasions when you must concede your entire case. In either instance, an appellate court is going to appreciate your candor and view you as credible in future cases.
6. Follow formatting rules. Appellate courts like their rules. They have them for a reason. Negligence in following the formatting rules for briefs and other appellate filings will not score any points. And deliberately cutting corners on the rules may get you into hot water.
7. Use proper citations. Whether the appellate court to which you are writing follows the Bluebook or has its own set of citation rules, use proper citations. How can an appellate advocate who doesn't properly use one of the prime tools of the trade be trusted when it comes to substance of an argument? Avoid any reason for the court to be predisposed, consciously or subconsciously, against you.
8. Use correct spelling, grammar, and punctuation. In other words, proofread. Like incorrect citations, shoddy spelling, grammar, and punctuation indicates at best that you are sloppy (and thereby disrespectful to the court) and at worst that you are incompetent (and nothing you say should be given any credit). A good legal writing book can be helpful.
Your good reputation takes some time to cultivate. That reputation can be ruined quickly. Once you have established your credibility with an appellate court, stay vigilant to maintain it.