December 2003 - #2. 2003 New England Appellate Judicial Survey: Use of Authority and the Record.

 
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Vermont Bar Journal

2003.

December 2003 - #2.

2003 New England Appellate Judicial Survey: Use of Authority and the Record

Vermont Bar Journal - December 2003

2003 New England Appellate Judicial Survey: Use of Authority and the Record

David Lewis, Esq.

In the last issue of the Vermont Bar Journal, I gave a general overview of a survey I conducted in 2003 of every state and federal appellate judge in New England. The survey consisted of eightysix questions divided into seven sections, with each section covering a particular appellate topic. This article reviews the judges' responses to the questions that asked them how they preferred attorneys to use case authority and the appellate record in an appellate brief.

How an attorney uses case authority and the appellate record is an important factor in the success of an appeal. Every attorney knows that no appellate court simply takes an advocate's word for a certain proposition; there has to be a citation to either supporting case law or a part of the appellate record. Neither the volumes of the record which support your client's case nor the law books on the shelf are magically going to jump out and open up to a page which favors your case. Consequently, leading the appellate judges to those places both in the record and in the law library as quickly and as effortlessly as possible is an important goal for an appellate brief.

But how best to direct the appellate panel to where you want them to look? The survey results provide six basic rules for using authority and the record in your brief in a way that appellate judges across many jurisdictions find most helpful.

Rule #1: A useful way to present multiple similar authorities that all support the author's point is to use string citations with short bracketed quotations or summaries.

The judges' responses were consistent over multiple jurisdictions. They agreed that using short explanations or summaries when using multiple authorities was preferred.

String citations should include short explanations or summaries [See Original for Graph]

Rule #2: Citations of more than three The Vermont justices came the closest Overall, the answers clustered between cases without intervening bracketed of any appellate court in New England to straight agreement and agreeing strongly explanatory text are not helpful. expressing no preference...

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