Posted on March 28, 2014
In my more than twenty years of lawyering I’ve worked both as an attorney inside the chambers of several Alabama Supreme Court justices and as an advocate for parties in appeals before both state and federal courts. I’ve learned of the difficulty in succeeding in the goal of overturning on appeal a ruling of a trial court. When you represent the appellant, the most favorable standard of review you can hope for is just de novo review, while the appellee often gets to rely upon more favorable standards such abuse of discretion. I’ve written about that here.
Yet, that challenge is what makes it more intriguing, more interesting, more compelling. Because it asks more, requires more from you as an appellate lawyer. An average brief with average ideas or strategy isn’t likely to earn a reversal. As I’ve written before, appellants must be bold. The winning appellant’s brief has to upset the status quo of the trial court ruling and therein lies the challenge. Can you succeed in having the appellate court overturn precedent? Can you influence the court to use a public policy argument to favorably interpret plain language of a statute that the trial court used as the basis for the ruling on appeal?
An appellant’s brief (and reply brief) are a true test of an appellate lawyer’s advocacy skills. No, you’re not going to win them all, or even very many at all in some courts (see here). But when you do, it is a victory to savor. And if your winning percentage approaches the batting average of a major league baseball player you know you’re at the top of your game.