Attendees at the Council of Appellate Lawyers' Conference in Dallas, Texas, were treated to an outstanding presentation by practitioners Mike A. Hatchell, David E. Keltner, and Mary Massaron Ross on the craft of appellate advocacy. Participating in a panel discussion moderated by Professor William V. Dorsaneo III of the SMU Dedman School of Law, the panelists' remarks covered a wide range of practical tips that will be of interest to appellate attorneys of every experience level.

Mr. Hatchell began by noting that the decision to appeal may well be the most critical choice made in the appellate process. To make that determination, appellate counsel must have a thorough knowledge of the record "the way the appellate court is going to see it" (i.e., on paper, not in the context of live testimony); consider appellate expense, including post-judgment interest, attorney fees, bond costs, and the like; and make a reasoned judgment as to what the applicable law is likely to be at the time the case will be decided, rather than what the law is at the time the appeal is filed.

Once the decision to appeal has been finalized, strategizing can begin. This process initially involves analysis of three distinct questions. First, can the appellant surmount the "Four Pillars of Affirmance"? These Pillars are the preliminary hurdles that work against every appeal: (1) preservation of error; (2) standards of review; (3) the harmless error rule; and (4) statutory law and stare decisis.

Second, can the appellant satisfy the burden of persuasion? In other words, what does the appellant have to do to persuade the reviewing court to look past the Four Pillars of Affirmance? For example, in a case involving the erroneous admission of parol evidence, the burden of persuasion may involve convincing the court that the admission was sufficiently prejudicial so as to potentially alter the outcome of the trial court proceeding.

Third, what are the underlying policies and values that support the position the appellant advocates? It is necessary to demonstrate that the outcome the appellant desires is not only logically correct, but furthers a policy or value that is important to the court or its jurisprudence and must be vindicated against competing policies and values. In other words, the court must feel compelled to right a wrong. An example of a policy that must be vindicated is the enforceability of contracts.

Mr. Keltner then discussed the importance of framing the issues on appeal before pen is ever set to paper. In his words, "those who start something without knowing where they are going will not know when they get there." Mr. Keltner identified three forms of questions presented that the appellate advocate should consider. First is the "point of error" question, e.g., "Did the trial court err in overruling defendant's motion for JNOV because…" The benefit of framing the issues with this kind of question is that the question itself immediately assuages any concerns regarding preservation, and it quickly informs a busy court of the appeal's focus.

The second type of question is the "whether" statement, e.g., "Whether the rule in Smith v. Jones means X." Although this type of statement fails to suggest to the court what the answer should be (generally a recommended practice), it may be helpful when an appellant seeks discretionary leave, where a broad issue presented increases the likelihood that leave will be granted.

The third question type is the so-called "deep issue" question, advocated by legal writing expert Brian Garner. Such a question essentially provides the court with the entire appeal in a nutshell, then asks questions with self-evident answers. There are two dangers, however, to the deep issue approach. The question can be turned against the appellant if the appellee successfully demonstrates that one of the question's foundational points is faulty. And if the question is too long or too wordy, the court may not bother to read it. When drafting a deep issue question, then, recall Abraham Lincoln's famous introduction to a lengthy piece of correspondence: "Please forgive the long letter. I didn't have time to write a short one."

Ms. Massaron Ross addressed the attendees regarding briefing and summary of argument. With respect to briefing, she first emphasized the need to choose strong words and to organize them well, stressing the importance of good grammar to facilitate comprehension. For brief writers "stuck" in a writing rut, she recommended the outstanding writing treatises that Garner and Wydick have authored.

Ms. Massaron Ross next focused on the importance of a forceful, logical argument. Writing such an argument involves devotion not only to classical styles of rhetoric, but also to a thorough understanding of the jurisdiction's precedent to see what analytical tools the judges on the appeals court find persuasive. A brief based on public policy and legislative history may offend a textualist court, while a plain language argument may do little to move a court devoted to other interpretative theories.

Finally, Ms. Massaron Ross emphasized the importance of drafting a persuasive summary of the argument, even in jurisdictions where the court rules do not specifically provide for such a section. Many judges have told her that they read the summary argument first, before any other part of the brief, or last, just before oral argument, as a refresher. The purpose of the summary is not to reiterate the argument headings, but to provide a bird's-eye view of the argument, perhaps citing the major authority on each issue. The summary should highlight the theme of the brief and bring all of the brief's elements together.

The panel closed with a question and answer session. Some of the suggestions included the following:

• When analyzing a new appeal, start with the jury charge and the transcript of the closing arguments. These documents will present the case in microcosm.
• Wait to begin the process of leaving "no stone unturned" for useful appeal points until after developing a clear understanding of the point(s) of persuasion.
• In appeals involving an alleged evidentiary error, the prejudicial harm can often be shown simply by pointing out how the improperly admitted evidence was used in trial counsel's closing argument.
• Challenge yourself by asking, what if I lose on this point? Sometimes the answer will compel an alternate, but equally successful, outcome, or suggest synergies between seemingly unrelated points of argument.
• Permeate every section of the brief with the primary appeal themes and arguments, from the table of contents, to the questions presented, through the argument and conclusion.

Finally, the panel reiterated that every appeal, and every appellate attorney, is different. Adopt the strategies that work for you and meld them with your own, and you will find yourself a better practitioner of the craft of appellate advocacy.