Vol. 6, No. 4, Pg. 32. Polishing Your Appellate Advocacy.

• Author: By David W. Harwell and C. Mitchell Brown

South Carolina Lawyer

1995.

Vol. 6, No. 4, Pg. 32.

Polishing Your Appellate Advocacy

32Polishing Your Appellate AdvocacyBy David W. Harwell and C. Mitchell BrownA good trial lawyer is not necessarily a good appellate advocate. An argument that might be persuasive to jurors may be rejected out-of-hand by an appellate panel. This article provides some pointers for practitioners who find themselves before an appellate court.

The Court's Perspective

Approach the case from the perspective of the appellate court and its interest in the ramifications of its decision. The old problem of "bad facts making bad law" crops up time and again. The lawyer who is on the wrong side of the "bad facts" must focus the court's attention on a different set of ramifications and on a different result what the rule advocated by his or her adversary in the case at bar would mean to future cases.

Few appellate judges will base their decision on a rule merely because the rule has existed unchanged for a period of time. While continuity in the law is certainly important, a rule of law will rarely be preserved simply because it has "been the law" for a number of years.

Most appellate judges are more concerned with the future, and they are cognizant of the fact that a particular rule may have been adopted under drastically different circumstances than now exist. If an advocate has attempted and failed to portray a decision for his or her client as the most fair and proper result, he or she must divert the appellate court's attention from the client to the rule (or interpretation of the rule) proposed by the opposing party and how that rule will cause an injustice in other cases not yet before the appellate court.

Providing No Solutions

Think in terms of the appellate court as a decision maker when crafting arguments. If a lawyer has all criticisms and no solutions, the court may be left groping in the dark for a way to rule in his or her client's favor. The lawyer should provide a suggested rule for the court's adoption to make its job easier and to make ruling in his or her client's favor the path of least resistance. Obviously, this is especially true if asking the appellate court to overrule a prior rule.

Advocating Rigidity

Another factor to consider in terms of viewing a case from the appellate court's point of view is that courts are wary of adopting...