Two Bonus Appellate Tips From The Experts
For those of you who are in suspense, Part Two of my Tips for Appellate Argument is still in the works. In the meantime, I thought I would share some knowledge from two experts in the field.
Last week I attended the Maryland Association for Justice’s Workhorse seminar. Part of the program was a talk on appellate advocacy given by the Hon. Joseph F. Murphy, Jr. of the Court of Appeals of Maryland and by Marc Fiedler, an attorney with Koonz, McKenney, Johnson, DePaolis & Lightfoot in Washington, D.C.
To whet your appetite for the balance of my thoughts, here is one selected tip from each.
From Judge Murphy:
As you prepare for argument, (1) anticipate questions, (2) rank them in “degree of difficulty,” and (3) develop an answer. The Answer may be, “Yes, your Honor, on the facts of that case, but no on the facts of this case.” The answer may be, “We concede on that issue, but are entitled to [a reversal] on [another issue that is more favorable to you].” Do not run the risk of hearing that “you have not answered my question!”
From Mr. Fiedler:
Pay close attention to the applicable standards of review. Standards of review largely determine the power of the lens through which the appellate court may examine a particular issue. An error that may be a ground for reversal under one standard of review may well be insignificant under another. Therefore you must craft your brief and oral argument on appeal to reflect the proper standard and to show why, under that standard, your client deserves to win.
Helpful information. It is incredibly valuable to hear practice suggestions, particularly from the bench, no matter how much experience you have. I suggest that all lawyers take these opportunities when they are presented.
