Appellate Insights

Appellate justices are generalists.  Last week on a single Court of Appeal calendar, I listened to arguments that debated whether the justices should:

• Require a retroactive increase in child support;
• Reverse a personal injury judgment for re-trial, due to the improper discharge of a juror;
• Reverse summary judgment for a health insurer in an age discrimination suit;
• Compel the family court to provide further reunification services to parents deemed incapable of caring for a special-needs child; and
• Reverse a conviction for transporting methamphetamine.

When your audience reads a stack of briefs like this every week, it’s crucial that your main brief—whether as Appellant or Respondent—assume little or no familiarity with your case, or even the substantive field.  Instead, start with first principles, and move methodically into specifics, omitting every non-essential detail.  These are among the hardest points for immersed litigants and trial counsel to remember.

►  The practical message: Tell your appellate story, and argue the law, as if talking to a smart (but busy) person you’ve just met.  Because that is essentially what you’re doing.