Appeals: The Classic Guide

• Pages: 12-27
• Date: 01 July 2025
• Published date: 01 July 2025
• Author: William Pannill
• Subject Matter: Derecho Público y Administrativo

Appellate Practice

American Bar Association Litigation Section

Summer 2025, Vol. 44 No. 3

© 2025 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

copied or disseminated in any form or by any means or stored in an electronic da tabase or retrieval system without the express written consent

of the American Bar Association.

12

Appeals: The Classic Guide

William Pannill (Originally published Winter 1990)

June 01, 2019

When you want the best advice on handling an appeal, turn to the classics. The classic book

about how to write a brief and argue an appeal is Effective Appellate Advocacy, by Colonel

Frederick Bernays Wiener. It originally appeared in 1950. Although revised and reprinted

with new cases and examples in the 1960s and 1970s under the title Briefing and Arguing

Federal Appeals, Wiener’s book is now out of print and largely forgotten. Yet, Wiener’s

treatise is one of the finest books ever written about briefing and arguing an appeal. I have

read it again and again.

I came across Briefing and Arguing Federal Appeals early in my career in a large law firm.

Although I had a graduate degree in journalism and five years of writing for daily

newspapers, my briefs kept running aground on the partner for whom I worked. One day,

in the time when legal self-help books were rare, I saw this book on the shelf in the firm

library. I read it straight through. That single reading turned me into an effective brief

writer. My next brief made it past the partner in charge and into the court of appeals, where

it won the case.

For years, I thought anyone writing a brief would have read this book. Yet, for a quarter of a

century, I never encountered another lawyer—except some of the editors of this magazine

and the lawyers in my own law firm—who had read it. I have listened (as required) to

dozens of speeches about appellate practice and read even more papers from courses of

continuing legal education on the subject. Not once has an eminent speaker or author

mentioned Wiener’s book.

As a result, I have been able to keep to myself for 25 years this wonderful guide to the art of

appeals. For an appellate lawyer, owning the book was like owning the formula to Coca-

Cola. Colonel Wiener died in 1996 at the age of 90. Reluctantly, I have decided that now is

the time to part with this great secret before the book and I both disappear.

Why is the book so good? In part, it is because Wiener was such an elegant legal writer.

Wiener’s style of writing aims at clarity above all else. It is far superior to most legal prose.

Here is Wiener’s statement of purpose for his work:

Appellate Practice

American Bar Association Litigation Section

Summer 2025, Vol. 44 No. 3

© 2025 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

copied or disseminated in any form or by any means or stored in an electronic da tabase or retrieval system without the express written consent

of the American Bar Association.

13

Advocacy needs to be taught, and it needs to be learned. T oo many, far too many,

lawyers burden appellate courts with poorly prepared, poorly p resented, and

thoroughly unhelpful arguments—for which they receive, and clients pay,

substantial and not infrequently handsome fees. Lawyers, li ke other professional

men, can be divided into the classic threefold scale of evaluati on as able, unable, and

lamentable. Nonetheless, and after making due allowance for the frailties of

mankind, it is really amazing how few good arguments are pres ented and heard,

quite irrespective of the tribunal concerned. About a dozen y ears ago, I was told by a

Justice of the Supreme Court of the United States that four out of every five

arguments to which he is required to listen were “not good” . . . .

EFFECTIVE APPELLATE ADVOCACY 6.

In my experience, you can expand Wiener’s lament to include briefs. He concludes:

The present book is a response to the conviction that there is nothing mysterious or

esoteric about the business of making an effective written or oral presentation to an

appellate court, that the governing principles of that process can be extracted and

articulated and therefore taught, and that any competent lawyer has the ability, with

study and proper application, to write a brief and make an ar gument that will

likewise be competent—and that will further his client’s cause.

BRIEFING AND ARGUING FEDERAL APPEALS 6–7.

Wiener—known as Fritz—graduated from Brown University in 1927 and Harvard Law

School in 1930, where he was an editor of the Harvard Law Review. He developed his craft

as a government lawyer in the 1930s, after Felix Frankfurter brought him out of private

practice to join the New Deal in Washington. He worked in the Department of the Interior,

served as a captain in the Judge Advocate General’s Corps of the U.S. Army during World

War II, and served for several years in the Office of the Solicitor General of the United

States. He rose to become assistant to the solicitor general before he resumed private

practice in 1948.

Perhaps Wiener’s most famous exploit as a private lawyer was persuading the Supreme

Court of the United States to reverse itself on rehearing—a feat as rare then as it is

now. Reid v. Covert, 354 U.S. 1 (1957). An Army court-martial had tried a military wife in

Japan for killing her husband and sentenced her to life in prison. In a companion case, an

Air Force court-martial had tried a sergeant’s wife for killing her husband in England and

sentenced her to life in prison. The Supreme Court first held in the 1956 term that courts-

martial could try civilians accompanying the armed forces overseas. But Wiener persuaded