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The “Tell ‘Em What You Want Rule” of Appellate Advocacy: Advice For Appellate Brief Writing And Oral Argument


By Beyond My Ken Category:Architectural sculptures - Own work, GFDL,

By Beyond My Ken Category:Architectural sculptures – Own work, GFDL,

Appearing at the Appellate Division for oral argument is always an interesting experience. Unless your case is called first, you will sit through several oral arguments and hear other lawyers argue a great variety of cases from criminal convictions to contract disputes to business deals gone awry and more. It is never dull, and I recommend that every attorney take one day out of his or her busy schedule to observe oral argument at an Appellate Court. The questioning by the Appellate Judges is insightful and piercing all at once and they are quite skillful at cutting through both facts and legal precedent to get to the heart of the legal question in your case. No matter what area of law your practice emphasizes, once you have heard a panel of Appellate Judges dissect a case, youll come away with a different perspective on your approach to practicing law.


Through the years and many oral arguments observed and performed, I have discovered a few questions that seem to reoccur with surprising frequency. Whether I am in a State Appellate Court or a Federal Appellate Court, one of the questions that I hear at oral argument before the attorney can even get comfortable at the podium is, Counselor, what is it that you want us to do?


When I hear this question asked of an attorney, I know right away what has happened. The attorney has probably done a great job in his or her brief describing an error committed by the lower court and providing all the appropriate case law to prove that it was indeed an error committed by the lower court, but has forgotten to ask the appellate court for the specific relief he or she is looking for.


This happens more often than one would think. We become so focused on telling the Appellate Court what went wrong that we forget to tell them what we want them to do. Many times it is obvious and not necessary, especially in criminal cases where we are seeking a reversal of the conviction; however, in civil appeals, it is a necessary element to your brief and your oral argument. Despite the obvious nature of this proposition, I hear this question asked at least once every time I appear for oral argument. Here are two ways to remedy the situation.


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Tell Them What You Want In The Opening Paragraph Under Each Point Heading

Using some organizational method for your briefs is important. You may remember the IRAC method from law school: Issue, Rule, Analysis, Conclusion. This is a simple organizational tool to give the body of legal arguments in your brief some structure. There are many variations of this method, but it is important to use one of them to make it easy for the Court to follow your argument. I personally gravitate toward ICRAC: Issue, Conclusion, Rule, Analysis, Conclusion. This allows me to state my conclusion up front and tell the Court what ruling or relief I am seeking.


In conjunction with this organizational method, I always include an introductory paragraph after each legal point heading that consists of a synopsis of the facts and one or two sentences telling the Appellate Court what I believe is the appropriate remedy. The result in your appellate brief might look something like this:





The search of the defendant’s home, under both the U.S. Constitution and the New York State Constitution, was illegal because the search warrant was based on insufficient evidence and the police lacked probable cause. The evidence was, therefore, illegally put before the jury, and this Court must find that the search warrant was constitutionally infirm and remand this case for a new trial.


This is an oversimplified hypothetical version of the “Tell ’em what you want” rule, but it illustrates the concept. In two sentences, I have informed the Court what went wrong, the law on which I am basing my argument, and, most importantly, what it is that I want them to do. Now the Court knows what I am arguing and what I want, all in the first paragraph. The remainder of my legal point in my brief can be dedicated to illustrating why the search warrant was invalid, along with the law supporting my argument, and why the Appellate Court should remand the case for a new trial.



Use A Scripted Opening And Closing For Oral Argument

This same “Tell ’em What You Want” principle applies at oral argument. Although there are many philosophies on how to commence oral argument (the subject of another article), one can always open and conclude oral argument with a brief statement of precisely what it is that you are asking of the appellate court. I generally have something scripted for both the open and close of oral argument, so the judges will have a clear idea of what I am requesting of the court.


Oral argument is always a very fluid and dynamic exchange and you may not get through your scripted opening before the panel begins launching questions at you. This is precisely why it is important to have your “ask” prepared for both the open and close of your argument.


These are two very simple methods of getting what you want from an Appellate Court. Eliminate confusion in your briefs and at oral argument by telling the Court what you are seeking at the outset.

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