Saturday, 7 April 2007

May the Best Appellate Lawyer Win, Unless the Facts or Law Dictate Otherwise

April 7, 2007

May the Best Appellate Lawyer Win, Unless the Facts or Law Dictate Otherwise

Howard J. Bashman,

U.S. Supreme Court Justice Harry A. Blackmun famously graded the performance
of oral advocates arguing cases before the Court. Now those grades,
contained in the Blackmun papers at the Library of Congress, are providing
fodder for academics seeking to analyze how the quality of advocacy at oral
argument influences the result in cases the Supreme Court decides on the

As someone who regularly briefs and argues cases pending on appeal, I have
long preached the advantage of involving an experienced and effective
appellate advocate when a case heads to appeal.

Effective appellate advocacy is both an art and a science, and therefore a
litigant whose case has reached the appellate level can only be helped by
having an experienced appellate lawyer on the team.

However, a persuasive and well-written appellate brief along with a
compelling oral argument do not guarantee victory on appeal. This is because
the facts of the case and the law applicable to the case are capable of
thwarting even the most effective appellate presentation imaginable.

Assume for a moment that two equally highly effective appellate advocates
are working on opposing sides of the same case. In such a case, the parties'
appellate briefs will both be of the highest quality. And the oral arguments
that these appellate advocates offer to the judges are also of equally high
quality. In this hypothetical case, as in most every case, one party will
win and another will lose, based on what the law applicable to the case and
the facts of the case require.

Now let's assume the party that would win if the opposing appellate
advocates were of equally high quality instead engaged a slightly less
talented lawyer to handle the case on appeal. Presumably, if the law and the
facts dictated a certain result when the advocates were of comparably
excellent quality, that same result should nevertheless be obtained even if
the party that ought to prevail had hired an appellate lawyer who was
slightly less effective.

Indeed, it is my view that judges are supposed to decide appeals based on
the merits of the issues being raised, the facts of the case and the
applicable law, rather than based on the quality of the briefs and the oral
arguments. And I believe that every appellate judge would agree that,
although effective appellate briefs and oral arguments are surely desirable,
cases on appeal must be decided as the facts and the law compel, even if the
less talented advocate wins as a result.

One of the most important ways that an experienced appellate lawyer can be
of help, even before anyone stands up in court to argue the appeal, is by
identifying the strongest issues that can be raised on appeal, by setting
forth the facts in a manner that is faithful to the record but also helpful
to the client, and by marshalling the applicable law in a way that most
persuasively supports the result being sought on appeal.

Having highly qualified lawyers at every stage of a litigated case can make
a world of difference, because it helps ensure that viable issues are
preserved, that necessary objections are raised in a timely manner, and that
the record contains the facts and legal arguments necessary to prevail on
appeal. Although having a highly qualified appellate lawyer has never caused
anyone to lose an appeal, it also does not guarantee victory, because in the
final analysis the facts and law must control the result.

A paper analyzing the effect of oral advocate talent based on the grades
assigned by Justice Blackmun reveals that he gave average grades to the oral
advocacy of three current U.S. Supreme Court justices: John G. Roberts Jr.,
Ruth Bader Ginsburg and Samuel A. Alito Jr. Those three justices appear to
have managed to overcome Blackmun's view of their oral advocacy skills. And,
in fairness, we will never know what grades they would have assigned to
Blackmun had he ever orally argued a case before them.


Source : (Howard J. Bashman operates his own appellate litigation
boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached
via e-mail at You can access his appellate Web log at

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