PRINCIPLES OF APPELLATE LITIGATION: A GUIDE TO MODERN PRACTICE.

• Author: Melkonian, Raffi

In Mark D. Harris's new appellate practice treatise, Principles of Appellate Litigation: A Guide to Modern Practice, we are told that "superior" appellate advocacy requires the practitioner to blend the "subtle interweavings of scholarship, technique, and common sense." (1) So too the superior appellate practice hornbook. Too much theory, and the book is useless for the lawyer seeking a practical guide that can be used day-to-day. Too much technique, and the treatise becomes fact-bound, limited to a single jurisdiction or to a single kind of court. Principles, which is intended to be the successor to Herbert Monte Levy's 1968 volume How to Handle an Appeal, (2) blends those approaches. The result is a satisfying and useful single-volume treatise that provides a broad overview of appellate practice, but one which does not (and is not intended to) be the last word for any particular appellate court. (3) This is a book that an experienced appellate lawyer can turn to for ideas on difficult matters of judgment, and that an appellate tyro can consult as a guide when handling their first appeal. It is to be commended and deserves a place on the law practice bookshelf.

Principles proceeds in turn through all the major aspects of appellate practice: perfecting the record on appeal, error preservation, writing the brief, oral argument, amicus practice, appellate motion practice, and Supreme Court review, among others. But unlike other treatises, Harris's style is readable. This is a blunt and practical manual written by a practicing lawyer. Thus, for example, we hear about Harris's writing "pet peeves"--he disdains "compound legalistic words," like "aforementioned" (4)--and his warnings that "humor" is "rarely effective. (5) And consistent with that conversational and practical tone, there is advice that goes beyond simply the technical. In the brief writing chapter, for example, Harris advises lawyers to leave ample time to "sleep on" their arguments, to give the lawyer time to revise and sharpen their arguments. (6) This advice is priceless. Giving a brief time to percolate almost always improves it. Similarly, Harris stresses the importance of adding "atmospheric" arguments to a brief that "will not win but may color the court's perception" of the case. (7) This is exactly the kind of advice that this book excels in. Atmospheric arguments are key to proper brief writing, and yet because they do not necessarily win, lawyers are loath to include...