Winning On Appeal: Better Briefs and Oral Argument

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When the late Ruggero J. Aldisert wrote Winning on Appeal in 1992, it became an instant classic in law school classrooms and appellate law practices across the country. To celebrate the twenty-fifth anniversary of the book’s release, Tessa L. Dysart and Leslie H. Southwick carry on the Aldisert tradition of revealing the "nuts and bolts" of how to prepare an effective brief with the nuanced art of a delivering a persuasive appeal to the court. Their meticulously rendered update is replete with dozens of interviews with leading appeals judges and practitioners—treasured guidance from a bona fide who’s who of appellate advocacy in America—and escorts readers into the “wired” courtroom of the twenty-first century, where they explore the benefits and challenges of melding technology with appellate advocacy. With a Foreword penned by U.S. Supreme Court Associate Justice Samuel A. Alito, Jr., Winning on Appeal conveys the perfect blueprint for any lawyer who wants to win on appeal.

Reviews

"I argued before Judge Aldisert as a young attorney, and I learned from the experience of trying to hold my own in front of the former Marine. I will certainly never forget those occasions. Arguing before Judge Aldisert was the best (and therefore the most demanding) Socratic experience imaginable. Woe to the lawyer who was unprepared or, worse yet, tried to pull something on the court! But to paraphrase that famous Sinatra song, if you could make it arguing in front of Judge Aldisert, you could make it anywhere.

I am very pleased that Rugi’s teaching will live on after him in this new edition of Winning on Appeal. For new appellate advocates, this volume should be required reading. I wish that it had been available when I argued my first case. For more experienced attorneys, the book contains advanced tips and reminders that may serve as a corrective against the bad habits that are easy to acquire. For any attorney who wants to know how to win on appeal, this is where to look."

              — Samuel A. Alito, Jr., Associate Justice, U.S. Supreme Court

"This essential volume combines vital information with practical advice from fellow practitioners and the judges who are the intended audience for appellate advocacy."

              — Paul D. Clement, former Solicitor General of the United States

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Table of contents

TABLE OF CONTENTS

FOREWORD TO THE THIRD EDITION

FOREWORD TO THE SECOND EDITION

PREFACE TO THE THIRD EDITION

PREFACE TO THE SECOND EDITION

PREFACE TO THE REVISED FIRST EDITION

PREFACE TO THE FIRST EDITION

PART ONE: THE THEORY AND CRITICISMS OF WRITTEN AND ORAL APPELLATE ADVOCACY

CHAPTER ONE: APPELLATE REVIEW: A PANORAMA

1.1  Overview
1.2  The Avalanche of Appeals
1.3  The Odds of Winning an Appeal
1.4  The Odds of Being Granted Oral Argument
1.5  Summary

CHAPTER TWO: THE PURPOSE OF BRIEF WRITING
2.1  Overview
2.2  Gaining and Maintaining Attention
2.3  Criticisms of Briefs
2.4  The Brief-Reading Environment

CHAPTER THREE: THE PURPOSE OF ORAL ARGUMENT
3.1  Overview
3.2  The Judges' View
3.3  The Lawyers' View
3.4  Criticisms of Oral Argument
3.5  The Purpose of Oral Argument: A Summary

PART TWO: TECHNICAL REQUIREMENTS FOR BRIEFS

CHAPTER FOUR: JURISDICTION
4.1  Overview
4.2  Appealability in the Federal System
4.3  Appealability in State Systems
4.4  The Notice of Appeal
4.5  Mandatory Timely Filing

CHAPTER FIVE: ISSUE PRESERVATION AND STANDARDS OF REVIEW
5.1  Issue Preservation for Review
5.2  Introduction to Standards of Review
5.3  Three Categories of Facts
5.4  Determining the Standard of Review
5.5  Discretion
5.6  Questions of Law
5.7  Examples of Standards of Review
5.8  Summary

PART THREE: THE NUTS AND BOLTS OF BRIEF WRITING

CHAPTER SIX: THE BRIEF: SELECTING ISSUES AND FINDING A WINNING ARGUMENT
6.1  Overview
6.2  Overview of the Brief-Writing Process
6.3  Choosing the Issues: The Lawyer's Decision and the Ethical Dilemma
6.4  Arranging the Issues
6.5  The Appellee's Issues
6.6  How Many Issues?
6.7  Perspectives from the Bench: Selecting Issues

CHAPTER SEVEN: THE BRIEF: RESEARCH AND USE OF AUTHORITIES
7.1  Preparing to Research
7.2  Researching and Compiling Research
7.3  Evaluating Your Authorities
7.4  Citation Evaluation Chart
7.5  Understanding What Is Precedent
7.6  How to Cite and Discuss Cases, Yet Be Concise
7.7  String Citations and Other "Don'ts"
7.8  Ethical Responsibilities in Citing Precedent
7.9  The Use of Cases to Persuade the Court to Extend or Compress the Law

CHAPTER EIGHT: THE BRIEF: STATING THE ISSUE(S) AND POINT HEADINGS
8.1  How to State an Issue: Overview
8.2  Point Headings

CHAPTER NINE: WRITING TO WIN: CLEAR WRITING, EDITING, AND CITATION FORM
9.1  Introduction to Clear and Concise Writing
9.2  Omit "Lawyerisms"
9.3  Be Concise
9.4  Be Clear
9.5  Keep It Civil (and Classy)
9.6  Edit Vigorously
9.7  Follow Proper Citation Form
9.8  To Footnote, or Not to Footnote
9.9  Writing to Persuade
9.10  Writing to Win: Advice from Judges and Lawyers

CHAPTER TEN: THE BRIEF: WRITING YOUR ARGUMENT
10.1  Writing the First Paragraph
10.2  Identifying the Source of Controversy
10.3  Structuring the Argument
10.4  Considering the Consequences of Your Analysis
10.5  The Requirement of Consistency and Coherence
10.6  Standards of Review
10.7  The Experts Speak

CHAPTER ELEVEN: THE BRIEF: THE REQUIRED LOGICAL FORM FOR EACH ISSUE
11.1  Introduction to Formal Argument
11.2  The Role of Brief Writing
11.3  Is Logic Really Important?
11.4  Introduction to Deductive Reasoning
11.5  Introduction to Inductive Reasoning
11.7  Overview of Fallacies
11.8  A Listing of Formal Fallacies
11.9  Informal Fallacies
11.10  Fallacies: A Final Word

CHAPTER TWELVE: THE BRIEF: STATEMENT OF THE CASE
12.1  Overview
12.2  Statement of Facts
12.3  Distilling the Record into the Statement of Facts
12.4  Writing the Statement of Facts
12.5  Special Considerations
12.6  Appellee's Statement of the Facts
12.7  Examples of Statements of Facts
12.8  Statement of the Procedural History
12.9  Examples from the Briefs
12.10  Conclusion

CHAPTER THIRTEEN: THE BRIEF: SUMMARY OF THE ARGUMENT
13.1  Overview
13.2  The Critical Opening Paragraph
13.3  Examples of Good Openings
13.4  The Summary of Summaries
13.5  The Introduction
13.6  Conclusion

CHAPTER FOURTEEN: THE BRIEF: FINALIZING AND FILING THE BRIEF, RESPONSIVE STATEMENTS
14.1  Overview
14.2  Requirements for Briefs: Federal Court
14.4  Requirements for Briefs: State Courts
14.5  The Brief’s Conclusion
14.6  Requirements for the Record and Appendix: Federal Court
14.7  Requirements for the Record and Appendix: State Court
14.8  A Wrap-Up on Briefs and Records Rules
14.9  Cover Page, Table of Contents, and Table of Authorities
14.10  Filing the Brief
14.11  The Appellee's Brief
14.12  The Reply Brief
14.13  Advice from an Appellate Specialist
14.14  Brief Writing: A Summary

CHAPTER FIFTEEN: THE BRIEF: A COMPENDIUM OF ADVICE
15.1  Writing the Argument: A Recap
15.2  Current and Former State Court Justices Speak
15.3  Circuit Court Judges Speak
15.4  The Perfect Brief and Pet Peevees
15.5  Rehearsing En Banc
15.6  Advice from Paul D. Clement, Kirkland & Ellis

PART FOUR: THE NUTS AND BOLTS OF PREPARING AND DELIVERING ORAL ARGUMENT

CHAPTER SIXTEEN: PREPARING FOR ORAL ARGUMENT

16.1  How Judges Prepare
16.2  The Importance of Preparation
16.3  Advice from Current and Former State Court Justices
16.4  Advice from Circuit Court Judges
16.5  Advice from Chief Justice John G. Roberts, Jr
16.6  Is It a Hot or Cold Court?
16.7  Preparing for the Questions: A Checklist
16.8  The Mandatory Rehearsal
16.9  Previewing the Court
16.10  Supplemental Citations

CHAPTER SEVENTEEN: HOW APPELLATE LAWYERS PREPARE
17.1  Howard J. Bashman, Law Offices of Howard J. Bashman
17.2  Bobby R. Burchfield, King & Spalding
17.3  G. Todd Butler, Phelps Dunbar
17.4  Kyle Duncan, Schaerr Duncan LLP
17.5  Miguel Estrada, Gibson Dunn & Crutcher
17.6  Wes Hendrix, U.S. Attorney's Office for the Northern District of Texas
17.7  Peter Keisler, Sidley Austin LLP
17.8  Scott Keller, Solicitor General of Texas
17.9  George A. Somerville, Harman Claytor Corrigan Wellman
17.10  Michael B. Wallace, Wise Carter Child Caraway, P.A
17.11  Julie A. Warren, West Virginia Attorney General's Office
17.12  Former United States Solicitor General Seth P. Waxman, Wilmer Hale

CHAPTER EIGHTEEN: DELIVERING THE ARGUMENT
18.1  Appearance and Demeanor
18.2  Nervous? Yes, We Know
18.3  The Actual Delivery
18.4  Watch Your Time
18.5  Be Flexible
18.6  Visual Aids
18.7  Arguing before a Cold Court
18.8  How to Answer Questions
18.9  The Appellee's Argument
18.10  The Rebuttal
18.11  Summing Up
18.12  Advice from Current and Former State Court Justices
18.13  Advice from Circuit Court Judges

PART FIVE: CHECKLISTS

CHAPTER NINETEEN: TWO IMPORTANT CHECKLISTS: BRIEF WRITING AND ORAL ARGUMENT PREPARATION
19.1 Brief Writing Checklist
19.2 Oral Argument Preparation Checklist

APPENDICES
Appendix A  Standards of Review
Appendix B  Issue Statements and Point Headings
Appendix C  The Brief: Statement of the Case
Appendix D  The Brief: Summary of the Argument

TABLE OF AUTHORITIES

INDEX