Appellate Insights

In nearly every case, both sides have colorable-to-good arguments.  Seeing both sides as objectively as you can, as early as you can, helps you win on appeal.  Here is how:

• First, winning sometimes means settling for a reasonable number—one that compromises between both sides’ best and worst-case outcomes.  You can’t know what’s reasonable if you can’t see the other side’s best-case scenario.

• If you decide to (or must) proceed with the appeal, you will need to confront the best legal and equitable arguments contrary to your position (while keeping the tone affirmative).  Even if opposing counsel misses one of those arguments, you’ll need to consider the likelihood the appellate court will see it, and frame your brief accordingly.  Finally, ethics rules require lawyers to cite an adverse case that is directly on-point, so you need a good argument for why the court should not follow that case.

• Solid preparation for oral argument requires “hostile Q&A” practice.  Appellate counsel must be able to predict the toughest questions the panel could ask.  If you need help seeing them, ask an uninvolved person to read the briefs.

►  The practical message:  Strong advocacy and objective assessment go hand in hand.  If an appeal looks one-sided, seek out fresh eyes.