Credibility as the Coin of the Realm in Appellate Advocacy

Credibility with the Court provides one of the key parts of an appellate presentation, whether written or oral. An advocate who fudges the controlling law or precedent or misrepresents it cannot expect the judges to credit other aspects of the argument. Misrepresentations about the record or the caselaw can effectively sink the most unfailingly accurate presentation of all other issues. Misstating something material to the case can plant a seed that grows into doubt about your honesty, your understanding of the law, and the thoroughness of your research.

Persuasive argument requires credibility. Spinning the facts or law in your client’s favor may require emphasis on particular facts or precedents while labeling the more problematic ones “unavailing,” but that does not authorize you to claim support from record evidence or judicial decisions that do not bolster your case.

When incredulous arguments appear in a brief, the responsive brief will usually point those out. If those arguments materialize in reply, it may occasion a sur-reply to inform the court of the filings departure from fair argument. Or it may provide an opponent with a devastating statement at oral argument from which there is no recovery.

In one case I had, my opponent made a false statement about the record in his opening brief. In my response, I dropped a footnote to rebut it, showing that nothing approximating what he argued was in the record, citing to the part of the joint appendix that would have, but did not, contain the “concession” he claimed. When we got to oral argument, I was shocked to hear my opponent make the claim anew without any acknowledgement of what I had said in my brief. As I began to jot down a note to remember to rebut the statement, Justice Ginsburg interrupted my opponent’s argument to make the point for me. He had no response. After that, what had been a smooth and very professional argument up until that time became disjointed and immeasurably weakened by his misstep. When I stood at the podium, I did not have to say anything about it because a justice’s efforts had done everything I had hoped to accomplish. The result confirmed that impression.

In their book on legal advocacy, Justice Scalia and Bryan Garner emphasize that oral argument requires an advocate to show the court “you are trustworthy, open, and forthright.”[*] If, in posing a question unanticipated in the briefing, you build an answer on a faulty structure that becomes apparent to the Court, either during oral argument or while an opinion is crafted, you will have snatched defeat from the jaws of a possible victory.

 

[*] Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 141 (1998).