By Michael Petro, originally published in Buffalo Business First on February 27, 2017.

Importance of brief shouldn’t silence oral argument

SPECIAL REPORT: Appellate Practice

Writing a brief for an appellate court is an opportunity for an attorney to communicate directly with the judiciary by taking great care in his or her writing. Some attorneys say these cases can be won or lost in the documents before any oral argument is even presented.

That doesn’t mean the oral argument isn’t a critical part of the appeals process. It can help answer questions, focus the court in a certain direction and explain the complexities of a case.

While the brief helps the judiciary navigate and focus in on the most important issues, an appellate judge typically has questions that must be answered before a final decision can be made, said Craig Leslie, leader of the appellate practice group at Phillips Lytle. So an oral argument that answers those questions can be integral to the decisionmaking process.

In a complex case, it’s not uncommon to see an appellate judge ask questions early on in an attorney’s oral argument to get a better understanding of the matter at hand, he said.

“It is an opportunity for an attorney to take what is on the page, which may be sort of a dry issue, and give it a little bit of life,” said Leslie, a former clerk at the Court of Appeals who has argued before that court, as well as all four Appellate divisions in the state.

In a rebuttal during a recent oral argument, he argued that because an opponent’s expert was proven to have made a ballpark estimate on a matter, it wasn’t an opinion based on valid data and wasn’t sufficient in a court of law. His argument was noted in the written decision.

In a few weeks, he will argue before the Fourth Department in regard to Erie County sewer litigation.

“It’s vivid proof that courts pay attention during oral arguments,” said Leslie, who also focuses on products liability, product safety, commercial litigation, tort litigation, real property valuation and tax assessment.

“Decisions aren’t written before oral arguments. The judges are still making up their minds. They pay attention to what is said and want to hear it,” he said. “And if they catch something in oral argument that they may not agree with, it will come back and be reflected in the opinion.”

An oral argument is something that attorneys should never forgo, according to Sarah Rera, a shareholder at Gross Shuman Brizdle & Gilfillan and a business and personal injury attorney.

“Every once in a while, you go up there and you have somebody say, ‘I’m just going to rest on my brief.’ You just want to shake them and say, ‘No, don’t do that.’ Your briefs are great but your oral arguments are like an insurance policy to make sure that the judges understand what you have in your brief,” she said.

Ann Campbell, an appellate practice attorney and managing partner of The Tarantino Law Firm, said it’s important to show up for oral arguments because there may be disagreement among the panel of judges and it offers an opportunity to clear up matters being questioned from the brief.

“Unless you have a really good reason to skip the oral argument, don’t do it,” she said.

Erin McCampbell of Lipsitz Green Scime Cambria agreed that one should never turn down the opportunity to present an argument, but she said 90 percent of rulings are decided on the papers and there is a very small amount of cases where the oral argument really matters.

Keys to an effective brief

Vincent Buzard of Harris Beach chaired a recent program titled “Meet the Justices” that brought together judges from the Appellate Court, Fourth Department, to provide tips for appellate lawyers. Among the suggestions: more imaginative and simplified brief writing to aid the court in understanding a case.

The Appellate Division has a heavy caseload so clarity of the issues is critical, Buzard said. Attach photographs to the record so the court can visualize an argument, add timelines or use a chart to identify people involved in a case.

Brevity is important, the judges said. There is no need to make a point two or three times in a brief. The first part of the brief that states the issues should serve as a guide for the court.

Also important: issue selection and a strong focus.

“At the trial level, you can throw everything at the wall and see what sticks,” Buzard said. “But with appellate work, you need to identify two or three winning issues to focus the court on, rather than every possible issue.”

He quoted the motto of former Court of Appeals Justice Eugene Pigott: “If it’s not prohibited, it’s permitted.”

So even though a summary of arguments is not required, it can help the court understand the cases.

“The point that is made in any appellate discussion is the importance of accuracy and not misstating facts, not stating facts that you don’t have support in the record for, not mis-citing or stretching cases beyond where they’ll go for your point,” Buzard said. “You can develop credibility with the court but if you make misstatements and lose credibility, it is going to affect this case and future cases.”

He pointed to a recent example of when an oral argument can make all the difference: In the U.S. Court of Appeals for the Ninth Circuit, the Solicitor General of Washington, D.C., came out against President Donald Trump’s immigration ban executive order.

“It’s much easier to sound good on a good case and much more difficult to argue a bad case,” he said.

— Michael Petro

So McCampbell, who focuses on appellate litigation, puts her all into producing the best brief. She is a former law clerk to federal district and circuit judges.

“Having clerked for a number of federal judges, I’ve seen where consensus kind of forms around a particular brief and that becomes almost the outline for the decision,” she said. “As an appellate litigator, my goal is always to be that brief and be the attorney who submitted the brief that the chambers is working off of as they prepare their draft.”

There are appellate courts that only grant oral argument in so many cases, such as the Third Circuit Court of Appeals, the federal court covering New Jersey, Delaware and Pennsylvania. Typically in that court it is allowed only in cases where the judges struggle to come to a decision.

In contrast, the U.S. Court of Appeals for the Second Circuit and Fourth Department in New York allow oral arguments for just about all appeals before them, McCampbell said. Erin McCampbell of Lipsitz Green Scime Cambria agreed that one should never turn down the opportunity to present an argument, but she said 90 percent of rulings are decided on the papers and there is a very small amount of cases where the oral argument really matters. “I think that no matter what, if given the opportunity, you should go there,” she said. “To just rest on a brief would be a mistake.”

Campbell of The Tarantino Law Firm said the brief should support the case’s strongest argument, address weaknesses and establish and maintain credibility with the court through case law.

“You would think that if a case goes up on appeal, you’re kind of cutting and pasting the motions (from trial), but it’s not like that because you need to reinvent it for a new set of eyes looking at the case,” she said. “It’s a lot of writing, rewriting, editing and figuring out the strongest argument.”

The role of an appellate lawyer is to simplify and clarify a case for the judges and help them visualize the argument being made through the use of timelines and charts.

There are requirements specified by each appeals court in the printing and filing of the brief. Robert Brucato, who manages the Buffalo office of Counsel Press, said the appellate service provider makes sure briefs are completed according to court rules. That may include specifics about headings, pagination, cover, typeset, binding and, in some cases, submitting it electronically.

Counsel Press has a legal research group that can write the brief, recraft or review it to provide suggestions, as well as answer questions for attorneys. Brucato, a senior appellate counsel, said electronic requirements have increased in courts. Right now, they exist in the federal Second Circuit and the state’s First Department.

“There’s always some issues that pop up and you never know what they may be until they come up,” he said. “In drafting any appellate brief, the brief writer should know the standard of review, the facts and have a clear understanding of the issues and why you should prevail.”

Rera, of Gross Shuman, has changed the way she writes her briefs. They are shorter now and don’t include excessive case law. She’s learned to start with the strongest arguments and to be less repetitious.

Some courts are actually setting page limits for briefs, but Sharon Gerstman, counsel to Magavern Magavern Grimm, said she isn’t concerned. An appellate practice attorney, she prides herself on being succinct. Her philosophy: Not too narrow but not overreaching and the simpler the brief is made for the court, the easier it may be for judges to see it her way.

“If you can say it in a shorter way, it’s a good thing,” Gerstman said. “That’s my personal style.”

She sees more attorneys relying solely on their brief, not necessarily because of its strength but rather, the expense and time commitment that appellate case law demands. She said many attorneys have discussions to determine whether to go to the Fourth Department in Rochester and spend time and money to argue the case.