Doug Alexander of Alexander, Dubose & Townsend recorded a Ten-Minute Mentor video for the Texas Young Lawyers Association (see here). In the video, Alexander gives seven basic principles that apply to every appellate brief. Below are Alexander's seven along with my own notes.
1. Master the Record.
As Alexander points out, the appellate lawyer has an advantage over the trial lawyer handling his own appeal in that the appellate lawyer gets the case the same way as the appellate court does: in a box. The appellate lawyer isn't weighed down with the roller coaster emotions of the client or the drama of the courtroom. He examines the record afresh and is better positioned to cut the fat off the swine if need be.
2. Master the Controlling Law.
Alexander says that with every appeal he takes the time to "muck around the law." Since the appellate lawyer deals with all kinds of law, it is important that he be able to spend blocks of time reading and reviewing cases that may or may not have anything to do with the case at hand. It is just as important for him to understand the concert hall as it is the particular performance.
3. Understand the Other Side's Argument.
The appellate lawyer must take the time to ponder and deconstruct the other side's arguments. Very often the trial lawyer turned appellate lawyer fails to see the other side's argument in light of the particular standard of review.
4. Argue from the Hand that You are Dealt.
Since trial lawyers work in the arena of discovering facts, they may be able to hide the ball when it comes to showtime. Appellate lawyers do not have that luxury. The better appellate lawyers step up to the plate with bad facts.
5. Establish the Field of Battle.
Alexander explains that one of the primary things that he does in fashioning an appellate brief is establishing the field of battle. Is the case about jurisdiction? Is it about jury instruction? He says that the appellate lawyer must define the playing field and also the perimeters of the field.
6. Weave the Basket.
The most effective appellate lawyers are able to weave their disparate issues into a cohesive whole, says Alexander. Easier said than done.
7. Make the Argument Impenetrable.
The appellate argument should be tight. There should be no other conclusion than the one found in the brief.