The opinion was unanimous among a panel of state and federal appellate jurists at How Appealing: Tricks of the Trade in Appellate Practice, led by retired State Supreme Court Justice Barry T. Albin.
“You have to go to that argument believing you can make a difference and in some cases – in many cases – you will,” he said.
While the brief is 90% of the road map of an argument, what attorneys say when they appear before a panel “certainly can make a difference. And certainly, the quality of arguments can impact that,” said. State Appellate Division Judge Greta Gooden Brown said.
“I enjoy the oral argument and banter and discussion to reach a good result in a case,” said state Presiding Appellate Division Judge Jack M. Sabatino said. “It is worth your time in most instances. It may not frequently affect what the briefs indicate to the panel of the tentative outcome… but it can very much shape how the decision is written.”
Indeed, retired U.S. Third Circuit Court of Appeals Judge Joseph A. Greenaway said arguments present an opportunity not just for lawyers but also for the judges hearing the case.
“If you get oral argument… please come and please know it is going to matter. Judges love to test their ideas in argument vis a vis their colleagues,” Judge Greenaway said. “You as an advocate can help me.”
Veteran appellate practitioner Bruce D. Greenberg, of Lite DePalma Greenberg & Afanador, offered insights for brief writing. The two more important parts are the start and finish. The preliminary statement is an opportunity to encapsulate what the judges will read when they go through the brief, and conclusion will tell the judges what outcome is being sought, he said.
“The goal of the brief needs to be sell without really looking like we are selling. We are relying on law… on facts that are documented,” he said. “We are trying to take those raw materials and shape them in a way that will persuade.”