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Surviving Your First Appeal

3 minute read

Earl Cherniak has a saying:  if you have not lost a trial, you have not done enough of them. The same applies to appeals. Though I basked in the success of my first appeal, it was not long before I learned the sting of defeat, now delivered decisively by a three-judge panel. For anyone just starting their appellate law career, let me assure you that your intuition is correct – winning is much better than the alternative.

So, how can an appellate lawyer guarantee success? The reality is that one cannot – no matter how well constructed the written argument or how brilliant the submissions, sometimes the law or the facts (or both) are not on your side. However, there are some tips, tricks, and steps that can increase the likelihood that, when you flip to the last page upon receipt of the decision, you are happy with what you read.

  1. Remember that less is almost always more. This means arguing fewer points to focus on the most salient (and the most persuasive) arguments. The court’s understanding of the issues will be enhanced if the key arguments are more fully developed. Plus, it demonstrates confidence in your position when not every possible argument is made in a scattergun approach to advocacy. “Less is more” also applies to the factum. Justice John Laskin’s succinct advice says it all: “Forget the windup, make the pitch.” Fewer words, use of active voice, more white space, and shorter factums are encouraged by the court to facilitate their review before the appeal is heard. It is not enough for the court to just read the factum; it is far better that the appellate judges engage with the material and retain the arguments. Making everything easier to read and digest is key to this.
  2. Know the difference between the role of trial and appellate counsel. Trial lawyers spend days, weeks, or sometimes months putting in the evidence that they feel will form a comprehensive narrative persuasive to the trial judge. Appeal courts, however, are courts of error. Appellate lawyers are, by and large, stuck with the record. Their role, if appellant, is to redefine the narrative accepted by the trial judge without deviating from the evidence and, importantly, without just re-arguing the case. The delineation between trial and appeal counsel can sometimes be hard to maintain; the instinct for unsuccessful trial counsel to want to lean into their rejected narrative on an appeal rather than reframe is one of the reasons why it can often be better to bring in new counsel for the appeal.
  3. Live (and die) by the standard of review. What I mean is that an appellate lawyer must know what kind of question is being put forth (i.e., law, fact, or mixed) and the applicable standard of review. Having identified those for the court, it is essential to argue within the standard, not try to fudge it. Practically speaking, it is very difficult to win a facts-based appeal, but the job is not made any easier by not facing the palpable and overriding error standard and making the argument within it.
  4. Know the rules, and if you don’t, find someone who does. The single most important person in our appellate advocacy group is our appeals clerk. She knows timelines, presentation requirements, and, importantly, the court staff! Appeals can be daunting enough without having to worry about whether documents will be accepted by the court.
  5. Seek and give opportunities. The courts want and expect senior counsel to give meaningful opportunities for appellate advocacy to more junior lawyers. Nothing hones the skill set more than practice, and even more, senior lawyers can learn from the presentation styles of their juniors.
  6. Lastly, enjoy it. Whatever the result, the process of preparing and the experience of arguing an appeal are rewarding intellectual enterprises.

And, if the restaurant at Osgoode Hall reopens, that reward should come, in part, in the form of a butter tart or club sandwich with colleagues.

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Cynthia B. Kuehl

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