Tip: Maintain a Vision of The Opinion You Hope to Receive

By Joel Henriod, Esq. and Adrienne Brantley-Lomeli, Esq.

Appeals should not be intimidating. Every law student learns the key to appellate success from the beginning, as they study judicial opinions in preparation for Socratic grilling. Even if you graduated 50 years ago, you may still recall Hadley v. Baxendale, 156 ER 145, 9 ExCh 341 (1854) (where the late delivery of a machine part rendered a mill dormant for several days, the court held that liability for the late delivery would not include the mill’s lost profits because the delivery company would not have reasonably contemplated lost profits to be a probable consequence of delayed performance).

Every appeal ends with an opinion or decision that contains the same components, a brief statement of the facts, the applicable law and governing concepts, a short analysis, and a holding. Yours will too. Success lies in helping the appellate court write that opinion.

Imagine your case from the perspective of the bench

As you frame your issue and define the relief you request, keep this question in mind: How will the appellate judges or justices view the facts and legal issues? Anticipate their reactions. Analyze their prior opinions and the types of questions they ask during oral arguments. Then reorient yourself, forget your side for a moment, and examine the case from their perspective.

The reason law students study judicial opinions is because they are law. The appellate court’s perspective must include not just your case, but also the efficacy of the judicial system that resolves tens of thousands of cases every year. Appellate courts exist to correct serious errors not nitpick. They also must be concerned for the precedent that each case sets. The court is like that adult in your childhood who said, “if I were to do this for you, I’d have to do it for everyone.” Your case will affect the law, even if unpublished.

To win, think hard about those concerns. Propose results that both are correct in your case and make sense at a systemic level. On procedural issues, imagine yourself being on the opposite side in the next case, and recommend a rule you could live with then too. On substantive matters, advance holdings that improve the common law, and would be fair and practical. If your preferred outcome is counterintuitive, demonstrating justness will require explanation.

Remember “the life of the law has not been logic; it has been experience.” Oliver Wendell Holmes, Jr.. Appellate judges and justices are human. So their life experience and wisdom will factor into decisions.

Keep it Simple

An appellate decision is an exercise in simplification. It’s no accident that legal opinions are reduced to parentheticals. Appellate courts use even complex cases to announce simple rules that guide behavior and make future cases easier to resolve. The process entails distilling volumes of pleadings, evidence and complex laws down to manageable issues until they can be decided with straightforward rules or tests. That’s more difficult than it appears, especially for busy appellate courts.

Be straightforward. What should the core facts and procedural history be in the eventual opinion? Focus your briefs on that simple narrative, weaving in only important details.

Be clear and concise, but complete. Just as Warren Buffet “never invest[s] in a business [he] can’t understand,” appellate courts are wary of reversing a lower court if they are unsure of the relevant circumstances. Give them confidence by distilling factually complex records and issues down to summaries that are short but sufficient, and painstakingly accurate.

The eventual opinion will follow a “C.R.A.C.” outline: conclusion, rule, analysis, (analogous) cases. Follow that pattern yourself. Strive to make your brief a draft of the opinion you want to see.

Imagine the opinion in which you lose

Our friend Dan Polsenberg advises, “it’s hard to win if you’re oblivious to how you could lose.” After years of living with a case and advocating for a client, it’s easy to forget the weaknesses in one’s case and the strengths of the other side. The more skewed our view becomes, the farther it drifts from the neutral perspective the appellate court will bring and the less mindful we’ll be of the systemic concerns the justices must also weigh.

Be clear-eyed. To win, force yourself to imagine the possible opinion ruling against you. What facts, authorities, analyses and public policies does that nightmare include? Face them, so you can handle them.

You can do this. You’ve been preparing since the first day of law school.

About the authors:

Joel Henriod, Esq.

Joel Henriod, Esq. is a partner at Lewis Roca Rothgerber Christie, a fellow of the American Academy of Appellate Lawyers, and a former chair of the Nevada bar’s appellate litigation section.

Adrienne Brantley-Lomeli, Esq.

Adrienne Brantley-Lomeli, Esq. is an associate at Lewis Roca Rothgerber Christie and a member of the Defense Research Institute.

This article was originally published in the “Appellate Practice” issue of Communiqué, the official publication of the Clark County Bar Association, (September 2020). See https://clarkcountybar.org/about/member-benefits/communique-2020/communique-september-2020/.

© 2020 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.

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