Appellate Insights

When drafting an opening brief on appeal, it can be tempting to avoid adverse authority — and on a first read, the brief might appear stronger that way. That’s wishful thinking. As Seventh Circuit Judge Richard Posner has observed, “The ostrich is a noble animal, but not a proper model for an appellate advocate.” Either your opponent or the court is likely to cite the problematic law, undermining your position and forcing you to deal with it on reply or at oral argument.

A better approach:

•  Make your affirmative argument;
•  Describe the adverse case’s holding (or troublesome statute) honestly and non-defensively;
•  Distinguish that authority or otherwise explain why the Court shouldn’t follow it; and
•  Resume your affirmative argument.

The practical message: Suppress the instinct to shy away from law that hurts your position. Confronting it head-on gives you a chance to defuse it, and will avoid the signal of weakness that hiding from it sends.