Justice Saxe
NYLJ/Rick Kopstein
Below are some personal thoughts on appellate advocacy that I have learned from my 15 years on the Appellate Division, First Department bench.
• Believe it or not, some appellate lawyers are so eager, they don't bother to introduce themselves to the court. So, always say, "Good afternoon, my name is Sam Jones, from the firm of ABC, appearing on behalf of appellant X." But, don't schmaltz it up. None of this: "I have the honor and privilege of appearing for appellant X." And, never, never ask appellant X to stand while you introduce her to the assemblage, something you might do at the outset of a trial. And, while on this point, if you happen to invite your client and the client's immediate family to view your formidable advocacy skills, be mindful of not "playing" to that invisible jury. Appellate judges don't like that. They are the jurors.
• Develop a short summary in the form of a theme for your argument. An argument should tell a story, a compelling story. Legal cases are stories which often contain the elements of compelling drama even while they may appear ordinary. Formulate a sentence or two to start out with that presents the human heart of your client's legal position. It has to be brief, so you don't appear to be arguing the facts rather than the law. But, appellate judges hear hundreds of cases; putting a human face on a legal argument may help them focus on your case as a unique matter.
Rather than presenting just another sidewalk defect case, yours could be the one where a standard that cannot be satisfied is being applied to the property owner. Rather than a typical Labor Law 240 case, yours could be about the general contractor who took every safety precaution and yet was unable to prevent the plaintiff's accident.
• Dress conservatively. For men, no sport jackets; wear a suit. Don't loosen the top button of your shirt and let your tie hang down. For women, and I have checked with my women colleagues on this, wear appropriately conservative and non-revealing (their words, not mine!) clothing, a suit, perhaps.
• If you are a respondent and the appellant doesn't show up for argument either because the appellant considers the case a slam dunk (unlikely) or a loser (more likely), think about forgoing oral argument, especially if the justice presiding ("JP") asks, "Do you really need argument time at all?" You may be snatching defeat from the jaws of victory by exposing the one weak aspect of your appeal, and every matter usually has one.
• There are usually a few cases (often First Department cases) that were relied upon by the motion or trial court in its decision and that are germane to the appeal. Know them cold, and if the case is against your position be prepared to distinguish it with specific reference to the facts of your case. If the precedent seems to close you in on all sides, be prepared to (respectfully) urge the bench not to follow the prior ruling, but you better have some good reasons ready to advance.
We do revisit prior doctrine, but appellate counsel needs to be prepared and thoughtful in order to persuade us that such a bold move is in order. After all, appellate judges are essentially incrementalists and prefer distinguishing a prior precedent (even endlessly) rather than simply sweeping it away.
• Don't read from notes or a script. It looks bad, and the judges probably won't allow it anyway.
• Don't lay your watch on the lectern next to you. We often take that to mean you are checking up on the accuracy of our timekeeping. In any event, the well-timed argument you may have delivered to your spouse at home will most probably not go off in the quiet, uninterrupted manner it did at home.
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