The lawyer's role in appellate lawmaking

Most of the discussion about court decisions tends to focus on the judge or judges who decided the case. The general public doesn't hear much about how the quality of justice dispensed by appellate courts depends on the quality of the bar that practices before them. Courts can only make law by deciding the cases presented to them. It's the lawyers who shape the cases and the issues presented by the cases, and it's the lawyers who develop the legal arguments in the cases. In that way, lawyers have always played an essential role in the development of American law. With characteristic eloquence, former U.S. Supreme Court Justice Robert Jackson, an outstanding advocate in his own right as solicitor general and Nuremberg prosecutor, described the essential role of the appellate lawyer in our legal system: "Adequately and helpfully to present a case § as it is about to be transformed into a precedent to guide future courts, to settle the fate of unknown litigants, perhaps to become required reading for a rising generation of lawyers § will challenge and inspire the true advocate. Decisional law is a distinctive feature of our common-law system, a system which can exist only where men are free, lawyers are courageous and judges are independent. To participate as advocate in supplying the basis for decisional law-making calls for the vision of a prophet, as well as a profound appreciation of the continuity between the law of today and that of the past. [The advocate] will be sharing the task of reworking decisional law by which every generation seeks to preserve its essential character and at the same time to adapt it to contemporary needs. At such a moment the lawyer's case ceases to be an episode in the affairs of a client and becomes a stone in the edifice of the law." What distinguishes the effective appellate advocate is an awareness that the function of an appellate court is fundamentally different from that of a trial court. The focus shifts from factual disputes to the law. That awareness reveals itself in many ways. First, you must realize that your laser-like focus on what's good for your client is no longer sufficient. Ask yourself what things would trouble you about your case if you were the judges, and be prepared to address them candidly. Take into account the broader ramifications of the case and be prepared to show that a victory for your client will also be a victory for the sound development of the law. You must satisfy the appellate court that the outcome you seek is just and workable in the general run of cases. Second, you have a different audience on appeal. Communication and persuasion are fundamentally different at the appellate court. For one thing, writing counts for more. The brief is the mainstay of your appeal. Ideally, it will get the result you want in the screening process, convince a panel of judges to rule in your favor, and have the staying power to provide the opinion writer with all the materials needed for a published decision. You must develop the skills needed for producing an effective brief, a brief that places the particular case in the broader context of applicable law and persuades the court of the merits of your cause. Finally, you must cultivate the habits of mind that will enable you to persuade appellate judges. The great complexity of our society is reflected in the nearly infinite variety of legal arguments that can be made. Become a scholar and a philosopher. Steep yourself in current legal developments. Think deeply about policy. Study how judges decide cases and tailor your arguments accordingly. Daniel Webster, when asked once how long he had spent preparing an argument, responded "My entire life, Sir." Like Webster, you bring your entire life to bear on every case, and you have an essential role to play in furnishing our appellate courts with the materials for decision-making. They can't do it without you because they can only work with the cases you shape. Let Justice Jackson be your guide to how you approach your role as an appellate advocate, as your case is about to become "a stone in the edifice of the law." "As I view the procession of lawyers who pass before the Supreme Court, I often am reminded of an old parable. Once upon a time three stone masons were asked, one after the other, what they were doing. The first, without looking up, answered, 'Earning my living.' The second replied, 'I am shaping this stone to pattern.' The third lifted his eyes and said, 'I am building a Cathedral.' So it is with the men and women of the law at labor before the Court. The attitude and preparation of some show that they have no conception of their effort higher than to make a living. Others are dutiful but uninspired in trying to shape their little cases to a winning pattern. But it lifts up the heart of a judge when an advocate stands at the bar who knows that he is building a Cathedral." With each brief and oral argument, you have it within your power to enter this exclusive club. §§§§§ Christopher J. Armstrong was an Appeals Court judge from 1972, when the court was created, until his retirement in 2008, and was chief justice from 2000 to 2006. He is currently of counsel to Dwyer & Collora in Boston. Thomas J. Carey Jr. teaches appellate advocacy at Boston College Law School and leads the appellate practice group at Dwyer & Collora. The authors can be contacted at the firm at 617-371-1000 or by e-mail at tcarey@dwyercollora.com. Published: Wed, Mar 3, 2010

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