Best Practices in Appellate Courts Focus of TBA Discussion

October 1, 2020

Arguing a case before an appellate court is often a pinnacle moment in any lawyer’s career. Doing it well takes practice, polish, and some inside knowledge into the workings of the appellate courts.

A panel of distinguished Tennessee appellate judges provided some insight recently during a livestreamed discussion that was part of the Tennessee Bar Association’s 24th Annual Labor and Employment Law Forum. Tennessee Supreme Court Justice Holly Kirby, Court of Appeals Judge Arnold B. Goldin, and Court of Appeals Judge John Westley McClarty spoke about the essentials of appellate practice, giving attorneys in Tennessee a wealth of advice to follow when preparing to argue at the appellate level. The discussion was moderated by Memphis attorney Dan Norwood.

All of the judges on the panel bring with them an abundance of experience. Justice Kirby has the distinction of having served on two appellate courts. She became the first woman to sit on the Court of Appeals when she was appointed in 1995, and then she was appointed to the Supreme Court in 2014. Judge Goldin served as a Chancellor in the 30th Judicial District for a dozen years before joining the Court of Appeals in 2014. Judge McClarty was appointed to the Court of Appeals in 2009, following over three decades of private legal practice.

The Brief

Judge McClarty said that efficiency and clarity are two elements that are key to a good brief.

“We don’t want to read a novel in a brief,” he said. “We need you to go directly to the point. Be concise with it. Be brief with it. Tell us what the problem is and make a reference to the record.”

Justice Kirby said that she is always happy to see a summary section in a brief because the process of writing a summary forces attorneys to really think through what is most essential about their argument.

“I think it is excellent discipline for lawyers to write a summary of your argument,” she said. “It’s not a required section, but I think it’s the mark of a good lawyer because the whole process of appeal is a distilling down of the case. When you’re preparing for trial, you have a mass of information and you’re trying to figure out how you’re going to present it at trial, so you have to distill it down and reduce it. When you present it at the Court of Appeals, it is a further distilling down of your case. You can’t give them all the wheat and the chaff together; you have to separate out what is most important to emphasize.”

Judge Goldin pinpointed technical shortcomings in briefs that can sometimes have a negative impact on the success of an appeal. To that end, he recommended that all lawyers do some reading before writing a brief.

“I certainly have a threshold recommendation, which is to read Rule 27 of the Tennessee Rules of Appellate Procedure so you have an understanding of what is required in an appellate brief,” he said. “That is so important.”

Both he and Judge McClarty spoke about how they are sometimes given briefs that are missing a section stating the issues presented for review, or that are in some other way technically deficient.

“If you don’t list your issue, if you don’t put it in the proper form, in the proper order, if you don’t cite to the record and provide legal citations to your arguments, you’re probably going to lose,” Judge Goldin said. “If you’re taking the time to appeal, or to protect your verdict, you really want to know what you need to put in your brief so you can be persuasive before the Court of Appeals.”

Judge McClarty also noted the importance of tone in a brief. It is inappropriate, he said, to stage personal attacks in a brief.

“In your briefs make sure that you don’t do something or say something derogatory or something that’s not nice about the parties, the judges, the courts or your adversaries,” he said. “Be respectful in your briefs, especially about the trial judges.”

Oral Argument

Oral argument is another fundamental, and potentially persuasive, part of the appellate process.

Justice Kirby said there have been a number of times where she has gone into an oral argument with a good idea of how she thought a case should be decided only to have her mind changed by oral argument.

She said that her advice to lawyers about writing a summary in their briefs actually contained advice about oral arguments as well. Appellate attorneys have a limited amount of time for oral argument, especially if they find themselves in front of a “hot court,” with judges asking many questions. She therefore advises attorneys to come up with several different versions of their argument that they can deploy as time allows. These range from a 10-minute version to a one-minute version.

“The summary in your brief is good practice for that,” she said. “You want to be able to put it in a nutshell.”

Judge Goldin agreed that the ability to condense the most salient arguments in a compelling way is essential to appellate argument.

“You need to be very conscious of what you’re arguing and make good use of the limited time that you have,” he said. “We’ve heard cases where the lawyers will get up and spend the first five minutes going over the facts of the case. We’ve read the briefs. We know what the facts of the case are.”

Another important aspect of oral argument is rebuttal. Justice Kirby stated that attorneys should not shy away from rebuttal, but should be ready to advocate for their positions confidently in the face of questioning.

“Be forceful and argue with conviction,” she said. “That’s your job as a lawyer and it’s not disrespectful to the judge or the opposing party.”

A good appeal starts at the trial level

Judge McClarty stressed that some of the most important work appellate lawyers can do to increase their chances of a successful appeal begins earlier in the judicial process.

“I think it starts in the trial court,” he said. “My advice is as you’re preparing your case for trial that you also prepare your case for appeal at the same time. Read and have in the back of your mind as you try your case the Tennessee Rules of Appellate Procedure and the rules for appeals of the appellate courts of Tennessee. Have those in the back of your mind because as you try your case you’re really preparing your case for appeal.”

He noted that issues on appeal must be raised first in the trial court.

“You have got to make your objections in trial court over issues of proof or any other matters you might have, and you have got to require the judge to rule on those objections,” Judge McClarty said. “We deal with what is on the record on appeal. If you are complaining about something that happened in the trial court, if it’s not in the record, it’s not before us.”

 Justice Kirby underscored this fact.

“If your case involves an issue of first impression, you are going to know that at the trial level because you will be researching it,” she said. “Many, many times we will see that a case involves a really interesting issue that we would love to address, but the record is really not sufficient for us to hit it squarely. If you take Judge McClarty’s advice and are cognizant of the possibility of appeal when you are at the trial level, you have a much greater chance of eventual success on that issue.”

Another thing lawyers can do, Judge Goldin pointed out, is to ensure that a final judgment has actually been made in a case.

“Occasionally, we are at oral argument and I’ll ask the lawyer, ‘Can you please explain to me how this is a final judgment?,’ and in some cases, frankly, it is just not, there are matters left to be ruled upon,” Judge Goldin said. “If it’s not a final judgment, we don’t have jurisdiction, and we’re bound to dismiss the appeal or send it back to obtain a final judgment.”  (See: T.R.C.P. 54.02).

This takes more time and generates additional expense to clients.

“I would hate going back to my client and say, ‘We have to go back to court, this is not a final judgment. There’s going to be more expense involved, and we’ve got to start over again,’” Judge Goldin said. “It’s not something you want to talk to your client about.”

Relatedly, Judge Goldin said that sometimes the Court of Appeals will get a case with a final judgment that is missing a certificate of service showing that the judgment has been sent out to all parties by either counsel or the clerk of the trial court.  (See: T.R.C.P. 58).

“We end up with an appeal without any indication in the record that all of the parties have gotten notice of the fact that a final judgment has been entered, which certainly has an impact on the fact that each party is entitled to have notice of and participate in the appeal,” Judge Goldin said. In those cases lawyers have to go back to court and make sure such a certificate is sent out, and the record on appeal will have to be supplemented by the clerk of the trial court.

Problems with final judgments and certificates of service “are things that can be avoided, but it’s really surprising how often they come up I’m sorry to say,” Judge Goldin said.

Good lawyering is appreciated

As the judges made recommendations and talked about best practices throughout the webinar, they made it clear how much they loved encountering the work of excellent appellate attorneys. It is one of the greatest pleasures of their jobs.

“It’s just a joy to have an appeal with really good lawyers,” Justice Kirby said. “It just makes my heart sing. I love oral argument. I love a really good brief. Your hard work is worth it. I really appreciate it, and I know Judge McClarty and Judge Goldin do too. We love what we do, and when we receive a well-crafted brief, when we have a well-prepared lawyer at oral argument, we come away just smiling. We enjoy it. We know how much you prepare, and we really appreciate all the hard work that you put into it.”