Last night’s meeting of the New Jersey State Bar Association’s Appellate Practice Committee featured a guest appearance by Judges Koblitz and Sumners. They took questions and shared advice about appellate practice, including what they like to see (and hear) and what they dislike. Some of that was familiar from comparable presentations by other Appellate Division judges. Other things reflected the thoughts of these particular jurists. Here are some highlights.
The judges had a number of pointers about briefs. One was that “briefs should be brief.” Lengthy briefs do not impress, and they should not read like law review articles. Each Appellate Division judge writes over 100 opinions per year, so they appreciate briefs that are concise and get right to the point, which allows the judges to use their time most efficiently.
One of the best ways to “get right to the point” is the Preliminary Statement. A good Preliminary Statement, the judges said, tells the court, up front, what the case is about, what the issues on appeal are, and why the party filing the brief deserves to win. Ideally, it would be written as though it were explaining the appeal to a layperson. The judges suggested that it is a mistake not to offer a Preliminary Statement, though they do see briefs that omit one.
The question of boilerplate in briefs came up, as a committee member noted that some clients want to see a lot of case citations in briefs on their behalf. The judges understood that, but said that if they perceive boilerplate, they are likely, at best, merely to skim it. A potential compromise might be to include a limited amount of boilerplate if necessary to satisfy a client, but no more than that.
Finally, the judges offered a tip that applied to both briefing and oral argument: don’t omit or misrepresent bad facts. Better to face them head on and try to put the best face on them. Pretending they don’t exist is a losing strategy. The other side will surely bring them out.
Turning to oral argument, and relating to the idea of confronting weaknesses in a client’s case, the judges urged counsel to concede what must be conceded. Doing so builds credibility. Doing so “artfully,” that is, turning it into an opportunity to make or reinforce a different, more favorable point, can help one’s position even more.
Some of the judges’ points about oral argument might be seen as obvious. But just as common sense is not always common, these “obvious” things are apparently not obvious to every advocate, at least in the experience of these judges.
One of the salient points was “don’t talk over the judges.” The judges have the right to interrupt counsel (though these judges said they try not to do so if possible), but it doesn’t work the other way around. Another helpful hint was “answer the questions asked.” Judges get unhappy with advocates who try to duck or dodge.
Oral argument can change the views that judges brought into the argument, the judges said. It does not happen often, but sometimes oral argument produces an “aha moment” that even good briefs did not.
The judges observed that different judges or panels may view oral arguments differently. Some enjoy a lengthy colloquy, while others look to truncate it. In this regard, as in so many others, their advice was “know your panel/”
Finally, the judges made clear that they and their colleagues “really care what happens” and “have a strong urge to do the right thing,” as a matter of “pride and professionalism.” One or both sides are usually disappointed with the result of an appeal, but it is encouraging to know that justice is the polestar.
There was, of course, much more than what has been recounted here. The discussion with the judges concluded with a well-deserved round of applause for their candid and helpful remarks.