The Big Picture
I do a lot of appeals -- 170, my BFF Lexis tells me -- and I'm constantly amazed at how much I still learn. I've had two recent epiphanies. The first is that the best time to start practicing for oral argument is just before you write your brief. The second is what an advantage it is to be the appellant.
I talked yesterday about the rape case I tried a couple weeks back, and the contrasting stories by the prosecution and the defense. There's also a story in every appeal, and unlike the myriad stories that can emerge at trial, on appeal there's really only two: the result below wasn't correct, or the process used to arrive at that result wasn't fair. In layman's language, your client got jobbed, or he got railroaded.
Preferably both. There's a relationship between the two. The court has to have some doubt about the result, or any problem with the process is going to be swept under that huge rug called Harmless Error. In most of my appeals from trials, I write an assignment of error on manifest weight. I often don't include it, but it at least gives me a sense of the flow of the trial, and how any errors might have impacted it.
That's important. One of the things I've preached is avoiding the natural tendency of lawyers to deconstruct cases. That's how we were trained in law school: we'd be given a case, and we'd break it down, charting the key points, the key arguments. We spend our careers doing that. We break down the divorce case into who gets the house, who gets the retirement accounts, who gets the kids. The contract lawyer looks for whether there's consideration, what the terms are -- length, revocation, warranties, indemnification, and on and on. The prosecutor has his checklist of the elements he has to prove. The defense lawyer focuses on where he can poke holes in the state's case.
By doing that, we sometimes lose sight of the big picture, of the story of the case. That's where my first (latest) epiphany comes in. Before you write your appeals brief, walk around the kitchen or stand in front of the bathroom mirror and practice your oral argument: tell your story. Tell the judges why you should win. That might not be anything close to the actual oral argument you give; a lot of the first one should work its way into your brief, and you may need to come up with something else when you're standing there in front of three or seven or nine people in black robes. But it goes a long way to getting your story out there.
Which brings us to my second (latest) epiphany. Being an appellant has a major disadvantage: the panel knows that somebody already heard your case, and you lost. But you have a major advantage, too: you get to tell your story first. And not the way a prosecutor does at trial. Yes, he gets to go first, but you're always there to respond: you get to schmaltz the jurors in voir dire, you get to make an opening statement, too, you get to cross-examine his witnesses.
In an appeal, the first thing a judge is going to read is your brief. You get to tell your story, you get to frame the issues. Being the appellant is like being the prosecutor, if he could put his entire case on without you saying a word, and then let you attack it.
I just did a brief on a case where the prosecutor introduced substantial evidence of the defendant's use of K2, a form of synthetic marijuana, and argued that's what prompted the defendant to sexually molest three children. (And yes, I know it sounds like something out of Reefer Madness.) I talked to one of the participants in the trial, who insisted that the K2 use had been a non-factor.
Well, by the time I got done with it, it sure as hell was. And thanks to the marvels of modern technology, which now gives us a searchable electronic transcript, I was able to write a line like this: "The word 'K2' appears 88 times in the transcript, over three times more often than the word 'rape,' the charge for which Mr. Mims was ostensibly on trial."
I like that story.
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