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How to win a Supreme Court appeal & other helpful advice on how to become wise...

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While watching a PBS special last week, I learned that most people go through a brain growth-spurt between the ages of approximately 55 and 65, similar to the increased brain development experienced by two-year-olds. The PBS program referred to this growth-spurt as a "wisdom bump". Hey, I'm 66. Perhaps it's not too late for my brain growth-spurt too. So I looked around for some way to stimulate my new wisdom bump. I know! I'll go to a meeting of the Berkeley-Albany Bar Association. BABA's featured speaker this month was Myron Moskovitz, an attorney who specializes in writing briefs for lawyers who need help in appealing their cases to a higher court. Moskovitz has just published a revised edition of his legal classic, "Winning an Appeal". I'm not a lawyer but, after hearing Moskovitz speak, it became fairly obvious even to me that this book will come in handy for any attorney considering doing appellate work. Why? Because whether you are pleading your case before a state supreme court or a federal one, you are going to need all the help you can get -- and Moskovitz is offering you some top-of-the-line help based on his own many years of experience. "Let's say that you have a case that you think is a good one, you submit a good brief to the judge and you know that you are correct about the legal issues," said Moskovitz, "but the judge rules against you. What can you do next? You can make an appeal to a higher court." But on what grounds do you appeal your case? Moskovitz of course offered some tips on that issue. "As an appellate lawyer, you have to stick with what's been given to you in the appeal. For instance, take the case of the beauty queen charged with drunk driving." Not much to dispute there. The cops have her blood test, they have her police report, they gots witnesses. She's pretty much nailed. "So you try to get the beauty queen off by pleading an erroneous jury instruction. 'Your Honor, it is granted that you can't touch the substance of this case -- but you need to look carefully at whether or not this person got a fair trial.'" And then Moskovitz began offering us good advice regarding the fine points of winning your case smoothly once you've already determined the nuts-and-bolts grounds for your appeal. "There are two basic rules regarding winning an appeal. First, you need to put yourself in the shoes of the decider. The judge is not you. Try to think about what the judge cares about. And also realize that the judge doesn't want to be seen as just another law clerk, checking on citations of precedence and parroting back the laws. No, judges want justice." Moskovitz is also an expert on rent control, having (literally) written the book. When he appealed a rent control case in Judge Rehnquist's court, he didn't try to sell rent control itself as the issue but rather framed his case as an issue of states' rights. "Look for justice issues. Try to give the decider a sense that there is justice in your case or convince him that the statute in your case is good. And try to convince the judge that the breach in the original case is not harmless." Which brings us to Moskovitz's second basic rule when appealing a case. "Comply with the rules, sure, but more importantly, use your brain. Think clearly and carefully about your case." You need to follow court rules and legal customs but you also need to think. "Your brief must do all the work. Think of yourself as the manager of a baseball team. If you do it right, you increase the odds of winning no matter what kind of players you have." When putting your brief to work, presentation is also very important. "Even the table of contents should be persuasive. And remember that appeals judges have other cases on the docket besides yours -- so your brief has to be easy to read. Use short paragraphs, simple language and lots of section headings." Next you gotta watch out how you state your case. "Present it intelligently and clearly. Don't put in too much information. Leave out dates and such, unless there a reason for them to be in. When in doubt, leave it out. And don't bury your best argument in a lot of crap." Sounds like good advice to me. "There is great power in the clear statement of facts. Writing an appeal is different from writing the original trial brief. You can't just put in whatever you want. Your job is to review the case. So the statement of facts must be relevant to the appeal. And the best way to state the facts is chronologically -- and in an orderly and clear manner. Never make a judge have to read a sentence over twice. And leave out all unnecessary information." What else does your statement of facts need? According to Moskovitz, it needs DRAMA! "Always cite the record and establish credibility -- but make it easy reading for the judge. Describe the deeds in the case. Adjectives help. Never attack your opponent with words -- show his deeds. Let the trial judge know who the case's opponent is personally." Regarding your appeal brief's argument section, "Stick to the law -- if you think that the law alone will win the case. But if you have doubts about your case's strengths in that area, two other factors will help you win the case: Facts and policy. Do more than just state the rule of law. State the facts of the case and then state the policies behind the law. Push the envelope here." Then Moskovitz reminded us again to remember that judges are more than just law clerks. "Write your briefs with the standpoint of the judge in mind, not what the opposing lawyer is going to say or do." That's important. "And be courteous." At the end your brief, you then get a crack at the all-important argument summary. "Your goal in the argument summary is to convince the judge, using only two or three pages. The summary should be a narrative, a gut thing. Don't cite. Pick three main arguments only, using the strongest one first. It doesn't matter how the judge reaches his decision as long as it's favorable to you. You have to get the judge to WANT to reverse the original decision -- but once you convince him to rule in your favor, a judge will try to find his own reason for doing it." According to Moskovitz, appeal judges start with the assumption that the original trial judge was right and did a good job. "Trial judges are appeals judges' buddies. They get together over lunch." And speaking of lunch, we were meeting at the La Rose Bistro in downtown Berkeley and they served us an apple-pecan-arugula salad and salmon in a cream sauce with Mediterranean olives and artichoke hearts, followed by handmade chocolate ice cream for dessert. Am I wiser and more intelligent after attending Attorney Moskovitz's lecture? Who knows. But he has given me some ideas for my own case (Stillwater vs. the Department of Defense) that may help me at my federal motion hearing on February 25 at 9:30 am in Courtroom F on the 15th Floor of the federal building at 450 Golden Gate Avenue in San Francisco. Also, I have been told that eating salmon is always good for one's brain. PS: Here's the full title of Moskovitz's book: "Winning an Appeal: A Step-by-Step Explanation of how to Prepare and Present Your Case Efficiently and with Maximum Effectiveness, with a Sample Brief". You can order it here.
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Stillwater is a freelance writer who hates injustice and corruption in any form but especially injustice and corruption paid for by American taxpayers. She has recently published a book entitled, "Bring Your Own Flak Jacket: Helpful Tips For Touring (more...)
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