In a law firm I was with previously, I was often tasked with writing an appellant’s brief or mandamus petition for another lawyer in the firm whose practice was entirely in the trial courts. One issue that came up on occasion was that the other lawyer, having lost before  the trial court, viewed an appeal as simply a second chance to get a court to approve the same exact argument made below. I would try to convince the lawyer that appellate courts are not just second-chance trial courts, but sometimes my efforts were to no avail. The outcome was generally predictable: another loss.

The pediment of the New York State Appellate D...

(Photo credit: Wikipedia)

The reason why that was so is because when you have lost in the lower court both the applicable standards of review based on deference to that court and an appellate court’s general tendency to affirm are working against you. When you are the appellant or the petitioner for an extraordinary writ, you are the “underdog.” Your brief needs to be a game-changer. It must take a fresh approach to the argument raised below. You must learn from the loss in the lower court and give the appellate court a reason for a reversal or for granting the writ in addition to the arguments made below. You can’t play it safe. Your brief must be bold!

Of course you’re not allowed to raise wholly new arguments on appeal, but you can take the arguments made below and give them a “fresh approach” by writing with a greater sense of urgency, setting the arguments in a larger and more complete context, using the technique of storytelling (see my prior posts on this topic), citing cases from other jurisdictions as persuasive authority, or focusing on the reasoning expressed in the lower court’s order and making any misstep by the trial court the focus of your brief.

You have to do something different. Something more. You simply can’t play it safe. You’ve already lost, so what do you have to lose? So try a new approach to the points raised below. Be an advocate. Be bold!

If you need help writing a brief, feel free to contact me through the web site for my freelance legal writing service, Appeals and Briefs by Michael Skotnicki, Esq., found either through clicking the logo on this page or via this link,  www.appealsandbriefs.com.

Advertisements