APPELLATE SUCCESS

Victor C. Howard,

Missouri Court of Appeals,

Western District of Missouri

#1 RULE FOR SUCCESS

WIN AT TRIAL

Oh, and also read all the rules….

Especially 84.04

PRESERVATION

RULE 78.07 (C) Motion to Amend necessary to

allege error re:• Form or language of

judgment• Failure to make required

statutory findings

LENGTH OF BRIEFS

• Appellant’s: 15,500 words• Respondent’s: 13,900• Reply: 5,115

FRAMING ISSUES• Think strategically--best plan of attack• Choose issues with best chance for

success• Avoid:

•Framing the wrong issue•Framing the right issue poorly•Too many issues---weak dilutes strong

OVERALL APPROACHBrevity and clarity

"I have made this [letter] longer, because I have not had the time to make it shorter." -- Blaise Pascal, "Lettres provinciales," 16, 1657(French Philosopher)

Good argument---process of distilling and clarifying complicated issues

Efficiently convey your messageOverly complex or unnecessarily

long=BADRepetition =BAD

BRIEFSTYPICAL 84.04 VIOLATIONS:• No citation to authority---

unless case of first impression must cites cases

• Faulty point relied on• Not citing to the record• Failure to develop argument• Slanted or rambling statement

of facts

STANDARD OF REVIEW

• Very important part of the case—determine early

• Each point must state applicable standard of review. 84.04(e)

• How we evaluate points• Determines amount of deference

to trial rulings• Mountain or mole hill---tell your

client

Standard of review: Court tried

Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); - judgment will not be reversed unless:

• no substantial evidence to support it• against the weight of the evidence• erroneously declared the law• erroneously applied the law.

Standard of Review: Abuse of Discretion

Considerable deference to the trial courtFor example: • Expert testimony• Admission of evidence • it’s appellant’s burden to establish error; • so arbitrary and unreasonable as to shock

the sense of justice---indicates lack of careful consideration;

• the court's ruling is clearly against the logic of the circumstances

Standard of Review: DeNovo

No deference to the trial courtFor example:• Statutory interpretation• Contract interpretation• Matters of Law• Appeals Court decides without

regard for trial court’s ruling

STATEMENT OF FACTS

• Fair, concise, relevant, without argument. 84.04(c).

• Eliminate unnecessary detail• Organize for clarity• Be truthful---credibility is on the

line• Cite to specific page numbers for

support

STATEMENT OF FACTS• Sentence or two describing case• Avoid merely recounting trial testimony:

“Mrs.Smith testified thusly.., Then Mr.Jones testified thusly…”

• Concisely tell the story of the case weaving in testimony and other evidence

POINT RELIED ON

Rule 84.04(d)Point must:• Identify the challenged ruling; (excluded a report)• State legal reason court erred; (proper for impeachment)• Explain why those legal reasons support

your claim of error (prior inconsistent statement—

admissible to impeach)

Avoid:• Asserting every imaginable

point---most cases only few potentially reversible errors---weak dilutes strong

• Points with numerous sub-points and sub-sub-points—confusing and ineffective

POINT RELIED ON

POINT RELIED ON• Thummel v. King 570 S.W.2d 679,

685 (Mo. 1978).

Point I: The Court Erred in Failing to Enforce a Written Contract of Agency and Guaranty for Which Consideration Was Paid to the Agent.

Point II: The Court Erred in Failing to Enforce Fiduciary Responsibilities on Defendant Brady Company.

POINT RELIED ON

The Supreme Court, in Thummel, said, “The bare allegation that the trial court

erred …is plainly inadequate because it does not identify any specific ruling complained of and does not even give any indication…the trial court was called upon to take such affirmative action.”

“It is not the function of the appellate court to serve as advocate…”

POINT RELIED ON The trial court erred in sustaining the

respondent director’s decision to administratively revoke (The Ruling)

appellant’s driving privilege because the trial court’s judgment was not supported by the evidence (Legal Reason)

in that the director failed to sustain her burden of producing evidence that the arresting officer had reasonable grounds to believe that respondent was operating a motor vehicle while intoxicated

(why legal reason supports error)

PREPARATION FOR ARGUMENT

• Know facts inside and out• Know law: yours and theirs• Case the joint:

–Location of the court–Parking–Counsel table, clock, etc.

(general feel of the place)–Podium(what will fit on it)

OF ALL THE JUDGES YOU HAD TO WALK INTO MY CASE

• Who’s on the panel?•Use last names( just be sure you are right)

•If one of the judges wrote one of your good cases---mention it

•Doesn’t count as pandering•Here’s how to mention it

• “ Oh judge you’re so smart.”

• “Look what you wrote!”

• “I just love it!”–( Till I’m on

the other side)

HELP, I NEED SOMEBODY• Most lawyers only argue a handful

of cases in a career, so:• Get to know the people who run the

place • (it ain’t the judges) • Clerk and staff = invaluable resource• Don’t be afraid to ask questions• Most are friendly and helpful

•Specialize in “dumb” questions

ARGUMENT PORTION

• Be credible, direct and candid• Civility---no personal attacks• Emphasize your strengths but…• Be prepared to take on your

weaknesses with confidence

IMPORTANCE OF ORAL ARGUMENT

• Every phase of litigation is about persuasion–From Petition to appeal

• Brief may be the most important part of that persuasion on appeal

• Brief outlines your case in black and white

MY BRIEFThe case in black and and white•

ORAL ARGUMENT: MY CASE IN COLOR

IMPORTANCE OF ORAL ARGUMENT

• Your chance to: –Add COLOR and PUNCH to your

strong points–Explain away your weak points

• Don’t just read your brief to us–We’ve already done that–A time to interact and explain

AN IMPORTANT TIME• Briefs have been read• Judges are thinking about the case• Opinions are being formed• In a close case you can nudge a judge

toward your position• Only chance for lawyers and judges

to talk face to face about how to decide the case

NO FIRE AND BRIMSTONE

Save the animated preaching for church

TRANSFORM COMPLICATION INTO CLARITY

• CRISP-- CONCISE-- CONVERSATIONAL

• Oral argument is not a brief with gestures and voiceovers---interactive process

• Be complete: but distill, simplify and clarify

• Don’t cram in every detail• Give the argument some air• Let it breath and come to life

A TIME TO THRILL

–Emphasize your strengths–Admit and tackle your weaknesses

• Don’t ignore obvious problems• Won’t go away---we will find them• Give us a path around or through• Don’t let opponent frame your worst

point--- take the sting out • “ Not my best point—but here is why

I still win.”

JOB #1---BE HONEST

• HONESTY- INSURES- CREDIBILTY

• Without credibility you’re sunk

NOTHING BUT THE TRUTH

• Don’t mislead or hide things• Don’t distort or stretch the

facts• JUDGES REMEMBER!• Your reputation is your most

important asset

READY--SET-- GO

• Don’t spend a lot of time reciting every fact–We have read the briefs

• Don’t be repetitive!–Makes for a long, boring argument

• Long story at the beginning usually waste of time–Don’t need the history of our

country---time is limited

OFF TO A GOOD START

• Begin by concisely pinpointing the issue

• Start with one or two sentences that frame the issue fairly----- but advantageous to you

• Then dive right in

CONNECTING THE DOTS

• Judges are problem solvers• But:

• Suggest a path you want us to follow• Don’t just throw us a problem to solve• Give us your road map to the solution

KNOW YOUR AUDIENCE

• We are not the jury• Argue the law • Be conversational• Great closing argument not same as

great appellate argument• Appealing to sympathy and emotion

not enough• Judges are human too, but…..

http://images.google.com/imgres?imgurl=http://www.chi-rhoproductions.com/images/judge.jpg&imgrefurl=http://www.novogate.com/board/5148/209935-13.html&h=365&w=369&sz=22&hl=en&start=12&tbnid=XyAK1IMVttdjNM:&tbnh=116&tbnw=118&prev=/images?q=monkey+as+a+judge&svnum=10&hl=en&lr=

PLEASE DON’T MAKE US CRY

• We can’t decide on sympathy alone

• Give us the law

• If there is no law turn to:–Fairness–Justice–Honorable v. dishonorable–Good v. bad for society

NO BEDTIME STORIES

• Don’t read to us –Just like when mommy did it---we

zzzzzzz• Don’t memorize and then recite

–Unless you are a really good actor• Know your case well enough to

follow an outline–Questions will probably derail your

plan any way

AVOID DISTRACTIONS IN YOUR APPEARANCE

CAN YOU HEAR ME NOW?

• Keep your voice up• No Austin Powers suits (“No

baby” )• Minimize gestures• Don’t pace around the room

QUESTIONS FROM THE BENCH

• Don’t dread questions!

• Questions are a good thing

• Chance to: –emphasize the

strong–Explain the weak–What’s on the

judge’s mind?

MAY I CUT IN?• When you get a question:

STOP LOOK AND LISTEN !

“BUT FIRST JUDGE I JUST WANT TO SAY…”

• Didn’t you see that last slide?• Immediately stop and answer the

question• Go where the questions lead

– It’s what the judges are interested in• Critical questions not necessarily bad

news–Judge might be leaning in your favor–Wants your help

FINALLY, NEVER INTERRUPT THE JUDGE!