Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Wednesday, September 20, 2023

Three things to win on appeal

I spent my 2L and 3L years as a law clerk in the criminal appeals division of the Utah Attorney General's Office. After graduation, I stayed on for a few months as I got ready to take the bar and start my career in a county prosecutor's office. Around that time, I went to a division barbecue. As I was heading to my car to leave, the division chief (Fred Voros, later a member of our state court of appeals) stopped to talk to me. He wanted to wish me luck and give some parting advice. He said, "John, if you remember nothing else from your time with us, remember that you need three things to win on appeal: 1. A rule; 2. Someone who broke it; and 3. That it made a difference." 

This has been the most enduring, helpful advice I've ever gotten for appellate advocacy, whether for brainstorming arguments or responding to someone else's. Once this high-level thinking is clear, filling in the details is a lot easier. 

1. What's the rule?

When I first started in criminal appeals as a law student, I was assigned a defense brief to draft the response to. I spent an afternoon reading and re-reading that brief, and could not make heads or tails of it. It had English words organized into sentences and paragraphs, but I could not for the life of me figure out the basis for his claim. He clearly disagreed with the jury verdict, but didn't say what rule was broken. I went to the assigning attorney and told him of my plight; he chuckled a bit and said, "John, there's a certain value in dealing with this level of incompetence; it forces you to understand the issues, and gives you the chance to be helpful to the court." I went back and tried again, and eventually figured out his problem: he thought the jury should have believed his evidence instead of the State's. I was then able to look through the rules for such things and realize that his claimed error--that is, what rule was allegedly violated--was no error at all. Case closed. 

There are many sources of rules in the law--court rules (evidence, procedure, etc.), statutes, case law, constitutions, etc. If you're wondering how to make or respond to a claim, first figure out what the rule is for what happened.

2. Who broke it?

Nicholas Quinn Rosencranz wrote two of the most insightful law review articles I've ever read (sad to say, not a very competitive category): The Subjects of the Constitution, 62 Stan. L. Rev. 1209 (2010), and The Objects of the Constitution, 63 Stan. L. Rev. 5 (2011). The biggest takeaway for me is the need to be precise about the "who" question. Judges and lawyers--in an effort to be nice--often use the passive voice or personify laws to obscure who violated the constitution. For example, they will say, "this statute violates the First Amendment" or "the First Amendment was violated." But saying who violated the rule clarifies the test and its basis. Was it Congress who violated the First Amendment by writing a bad law? That's a facial challenge. Was it the Executive who enforced an otherwise valid law in a bad way? That's an as-applied challenge. There are very different standards to prove depending on the answer to the "who" question. 

So when you get a case and you have a rule, ask yourself who it was that violated it. Was it the legislature? Some branch of the executive? The judge? The jury? Counsel? And what about sins of omission? An alleged judicial sin of omission is viewed through the lens of plain error. An alleged error of counsel in criminal cases is viewed through the lens of ineffective assistance. These latter questions concern preservation, and can also greatly affect the analysis of the underlying issue. 

3. Did it make a difference?

“Anyone familiar with the work of courts understands that errors are a constant in the trial process, that most do not much matter, and that a reflexive inclination by appellate courts to reverse because of unpreserved error would be fatal.” Puckett v. United States, 556 U.S. 129, 134 (2009) (cleaned up). To undo the whole process of a lower court proceeding and either forbid future proceedings or get a do-over is serious business, and appellate courts are often reluctant to do it. This manifests structurally in the prejudice requirement--that is, whether an error made a difference, and to what degree. There are different forms for different claims. Most will require the appellant/petitioner to prove a reasonable likelihood of a different result absent the error. But (preserved) constitutional errors switch both the bearer of the burden (from the defendant to the State) and the nature and degree of the burden (to harmlessness beyond a reasonable doubt). Some errors--like a biased trial judge--are structural, and the prejudice is from that judge sitting, not from what the outcome might have been otherwise. And as with the "who" question, preservation can affect this.

So when you're puzzling over a legal issue, step back and ask yourself: what's the rule? who broke it? and did it make a difference? It will help you winnow out bad claims, strengthen good ones, and respond to anything.

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I provided this article to several of our legal interns and law clerks. Although the points are perhaps obvious, it's elegant in its simplicity. Thanks for sharing it.

Posted by: Frederick Ulrich | Sep 26, 2023 6:06:41 AM

Several of our legal interns and law clerks were given this piece by me. The arguments may be obvious, but the presentation is beautiful in its spareness.

Posted by: amanda the adventurer | Oct 2, 2023 8:31:20 PM

Please give me some cod points.

Posted by: rainbow obby | Oct 12, 2023 12:21:59 AM

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