New York, NY commercial litigation attorney Philip J. Kessler discusses his approach to appellate work. Appellate work, while sharing many similarities with trial work, involves significant differences that must be understood by attorneys engaging in this practice. For an appellant, the primary goal is to persuade the court of appeals that an error occurred at the trial court level—whether by the judge or the jury—that warrants a reversal or modification of the decision. Conversely, for the party defending the trial court’s decision (the appellee), the objective is to demonstrate that the ruling was correct and should not be altered.

A deep understanding of the specific standards applicable to the type of appeal being pursued is essential. These technical standards guide the appellate strategy and must be carefully considered when formulating arguments.

In drafting appellate briefs, it is crucial to conduct a thorough review of the trial record. This comprehensive analysis helps identify issues with substantial merit, enabling the attorney to focus on compelling arguments that have the potential to influence the court’s decision. Peripheral issues that are unlikely to affect the outcome should be avoided. When representing the appellee, the focus is on affirming that there is no basis in the record to justify a reversal or modification of the lower court’s decision.

An effective brief must be clear, logical, persuasive, and meticulously supported by relevant legal precedents. Each legal assertion should be backed by case law, and any quotations from the trial record must be accurate and fairly represent the context, as this builds credibility with the appellate clerks who review the submissions.

The importance of oral argument in the appellate process cannot be overstated. Justice Scalia once highlighted that a great oral argument arises from a lawyer’s deep understanding of the case, enabling them to discern which issues are pivotal and which are not. This approach allows attorneys to concentrate on the most impactful arguments, rather than attempting to address every possible point, which can weaken the overall presentation.

During oral arguments, a “hot bench”—where judges actively engage with questions—should be seen as an opportunity rather than a challenge. These questions provide insight into the judges’ concerns, offering the attorney a chance to directly address and potentially sway their opinions. It is vital to be clear, concise, and responsive when handling such inquiries.

Time management is another critical element of appellate advocacy. Arguments often have strict time limits, such as 30 minutes in the U.S. Supreme Court and as little as 15 minutes in many federal and state appellate courts. Attorneys must be conscious of these constraints, ensuring that every point made is significant and well-chosen.

Unexpected questions or issues can arise during oral arguments, requiring the attorney to be flexible and adaptive. For example, in a trademark appeal, a judge’s initial question might reveal a fundamental misunderstanding of the concept of a trademark. In such cases, the attorney must quickly adjust their strategy, devoting part of their limited time to clarify basic concepts before moving on to more specific arguments.

Ultimately, success in appellate advocacy requires both emotional and intellectual flexibility. Attorneys should structure their notes to allow for adaptability, avoiding reliance on a rigid script. This preparation enables them to respond effectively to the dynamic nature of appellate hearings, maximizing the opportunity to persuade the court.