Statement on the functions and future of appellate lawyers.

INTRODUCTION

In this paper, the American Academy of Appellate Lawyers will discuss appellate lawyers as essential constituents in the community of appellate justice. We will first point out the dearth of literature about the effects of lawyers' activities on appellate justice. We will explore how effective appellate advocacy promotes the most important elements of justice and how ineffective advocacy disserves courts and society, not just hapless clients. As one federal appellate jurist put it, the first "constraint" on appellate justice is "reliance to quite a considerable degree on the performance of adversaries." (1) Lawyers affect justice in many ways beyond advocating in cases. We will review the roles of lawyers as courts' allies in promoting fair and efficient appellate justice, as guardians of the integrity of the appellate process, as observers who can fortify both bench and bar with information about problems and how to solve them, and as members of a primarily self-regulated profession capable of advancing and adopting reforms that improve the administration of justice. Finally, we will recommend reforms for study and implementation.

The topics of this paper connect directly with the agenda of the 2005 National Conference on Appellate Justice. To illustrate, tracking the three sessions of the Conference: (1) a specialized appellate bar is a resource for appellate courts' relations with the public and for interpreting the appellate process through the media; (2) appellate lawyers are indispensable participants in addressing the volume and quality of appellate cases, including by increasing the probability that clients' decisions whether to appeal are properly informed, by volunteering as appellate settlement officers, and by volunteering as counsel, managers, and mentors in pro se cases; and (3) by intentionally nurturing the market trend toward appellate specialization, courts and the organized bar can enhance the judicial tools (2) for reaching good dispute resolutions and writing good precedent.

A HISTORY OF IGNORING LAWYERS' ROLE

Visualize a literature of baseball limited to teaching players to play and explaining how umpires make calls. Imagine nobody covering how players affect the essence of the game, either by individual behavior or through their union. That silly vision is a perfect analogy for the real world of literature about the appellate process. Except to target lawyers for improvement, the published work ignores the role of appellate practitioners.

The written materials from the Appellate Justice: 1975 conference barely mention the role of appellate lawyers in the structure and future of appellate justice. The most prominent statements about lawyers are in the last recommendation on the last page of the last volume. (3) There, the council recommends that "[E]ach court should have a mechanism for formulating, implementing, monitoring, and reviewing appellate procedures. This mechanism should include three essential elements...." (4) The first was publishing the court's operating procedures. The second was a rule making procedure that allowed notice to the bar and an opportunity to comment. The last was creating an advisory committee including academic and practicing lawyers. (5)

Articles, pamphlets, and books proliferate imparting how to practice in appellate courts. Extending back at least fifty years, this literature generally repeats the same basic principles about briefing and oral argument and records judges' persistent laments that lawyers violate those principles. (6) New ideas and perspectives are rare. (7)

How lawyers do what they do is little studied. (8) How appellate lawyers individually and collectively affect the administration of justice appears not to be studied at all. Shortly after Appellate Justice: 1975, Thomas B. Marvell published two chapters of reasonably empirical analysis about who appellate lawyers are, what they do, and how they feel about their work. (9) Marvell reported observations in a journalistic style, but he did not discuss the systemic and social consequences of how lawyers present cases.

Lawyers can no longer be the blind spot in visions of the future of appellate justice. Lawyers' roles must be better understood in order to develop solutions more effective than recycling another generation of ignored or unlearned practice guides.

THE ADVOCATE'S RELATIONS WITH THE COURT IN APPEALS

An ethical, well-informed appellate lawyer is the first line of defense against irrationality, waste, and pettiness in the appellate process. The appellate advocate's most important systemic function is guiding clients in deciding whether to appeal--and advising whether to appeal or what to brief requires the appellate lawyer to frame issues for decision. Appeals occur because people and organizations--clients to the lawyer--want to improve their positions in specific ways. Framing an issue consists of translating a client's goal into a remedy the law allows, identifying the legal theories that can support the remedy, and finally determining whether the theories plausibly can be applied to the record. Proper issue framing economizes the appellate process by censoring both excellent arguments that achieve no benefit for the client and meritless arguments that would support the client's goal but cannot be advanced on the record. When no credible issue advances the client's goal, the result should be no appeal at all. Because the issue framing function bears so heavily on appellate system efficiency and because it provides an indispensable translation of client goals into appellate arguments, it should be treated as a central focus of study and improvement.

State and federal appellate rules require briefs to set forth the record in light of the standard of review. From the lawyer's perspective, this process ties closely to issue framing. Only that portion of the record relevant to the argued issues needs to be summarized. The value of the lawyer's record condensation varies with the size of the record. It is not very important to the process when the appeal arises from an early dismissal based on the pleadings. In contrast, when the record derives from a long trial or administrative proceeding, focused and accurate treatment of the record substantially enhances the efficiency of the entire appellate process.

The appellate lawyer also must present the applicable law. Of all appellate lawyering functions, this one is the most traditional and the most effectively taught in law school. Most appellate courts have research attorneys and electronic research tools that allow them to compensate for bad research by the advocates. Nevertheless, good work by the lawyers can lead the court efficiently through the proliferation of precedent and secondary authority that has become the database of the law.

In the discussion of issues, lawyers must analyze how applicable law applies to the facts of the case. Here, a lawyer acts as a traditional solver of legal problems. (10) Together with issue framing, this legal analysis provides the most expansive opportunities for creativity both in advancing the client's cause and in advancing development of the law. Poor legal analysis does not deprive appellate judges of the tools to resolve a case, but it may deprive them of insights valuable to their law-declaring function.

Collaterally to framing and arguing the issues, appellate lawyers identify topics for the law-declaring function. Either through a single adversary's ethical duties or the combined effort of opposing lawyers, the appellate process should identify conflicts in relevant precedent. Briefing should identify conflicts between precedent and the text of regulations, statutes, or constitutional provisions. Either a single case or the flow of cases should identify needs for precedent to guide trial judges, to guide lawyers, or to allow parties in commercial and social transactions to project the legal consequences of their actions. The flow of appellate cases should identify persistent problems in pretrial procedures, jury instructions, special verdict procedures, and other trial court processes.

Appellate lawyers identify public policy arguments that guide the law-declaring function. Thorough and thoughtful presentation of the...