SOMETHING REINFORCED, SOMETHING NEW: A REVIEW OF THE APPELLATE PROSECUTOR.

• Date: 22 June 2022
• Author: Dysart, Tessa L.
• Published date: 22 June 2022
• Author: Dysart, Tessa L.

I have been teaching appellate advocacy for over a decade. Yet, when I pick up a book or article on the topic, I often find that I still learn something new in the reading. And, even if I learn nothing new, per se, in the reading, I find important concepts re-solidified, new ways to approach important topics, things I disagree with, and a reminder that practices and customs do vary by jurisdiction. The Appellate Prosecutor both taught me something new and reinforced familiar, but important, concepts. It is a book I recommend to any appellate attorney but especially one that represents the government in criminal appellate matters.

The Appellate Prosecutor is an anthology of essays on appellate practice, with a special emphasis on attorneys who represent the state on appeal in criminal law matters. Although this emphasis is pronounced in certain chapters, (1) I think that most appellate attorneys, even defense-oriented appellate attorneys, will find something of value in the book. The chapters run the gamut of appellate practice, from protecting the record at trial (2) to brief writing (3) to oral advocacy (4) to even how judges conference cases. (5) The individual chapters were written by state appellate judges and state appellate prosecutors, and the volume was edited by Ronald H. Clark, a longtime state court prosecutor and Distinguished Practitioner in Residence at Seattle University School of Law. Although the book was published in 2005, I found very few things that were truly outdated. In addition to a memory-evoking reference to PalmPilot apps in chapter 7, (6) that chapter also contained a list of resources, some of which were a bit dated. But, these outdated references did not overly distract from the main purpose of the book, a boots-on-the-ground look at appellate work. And it is this perspective that makes this book special--it appears to be one of the only (if not the only) appellate advocacy book to focus on the role of the appellate prosecutor.

The three chapters that I learned the most from were the chapter on persuasion (7) and the chapters on conferencing cases. (8) The persuasion chapter, written by Judge Robert J. Humphreys of the Virginia Court of Appeals, started with a look at Aristotle's methods of persuasion--ethos, logos, and pathos--and how those methods can be used to persuade in appellate advocacy. (9) And while this is something I discuss in my classes, Judge Humphreys then pivoted into a topic that I had not...