Appearing before the Appellate or Supreme Court can be dauting task. To help demystify the process, a panel of esteemed appellate jurists and practitioners highlighted the best practices for representing clients on appeal.
The panel, featured at the New Jersey State Bar Association’s Annual Meeting and Convention in Atlantic City, was moderated by former state Supreme Court Justice Barry T. Albin. Speakers included Hon. Patty Shwartz, U.S. Court of Appeals for the Third Circuit; Hon. Greta Gooden Brown, J.A.D.; Bruce D. Greenberg, Lite DePalma Greenberg & Afanador, LLC; and Larry S. Lustberg, Gibbons P.C.
Here are the top tips from the seminar.
Briefs or oral argument. Which is more important?
The brief, not oral argument, is more important to the case and should demand most of the attorney’s time. The structure of every appeal revolves around the brief. Judges enter oral argument with knowledge of what’s in the brief, how the issues are presented and have likely already formed preliminary thoughts based on the arguments. Good briefing also helps an attorney organize their position and structure the oral argument.
Writing a good brief
Brevity is the soul of wit and repetition is not welcome by judges. Briefs should be brief. The courts in recent years have placed emphasis and value on brevity by limiting the page count for filings. It’s important to limit briefs to four arguments. If you can’t win with your strongest argument, you certainly won’t win with your weakest. A brief with too many arguments makes it difficult for a judge to parse through the stronger ones. Attorneys should also remember they will never write the perfect brief. It’s called practicing law for a reason.
Tips for oral argument
As important as brevity is in brief writing, it’s even more so in oral argument. The purpose of oral argument is to engage the court. Attorneys should design their opening remarks in a way that not only advances their position, but draws the court in and invites questions as quickly as possible.Treat the remarks more as a conversation rather than a speech.