Appeals focus on legal issues rather than developing and proving facts. There is no discovery, examining of witnesses or trials. The case is determined on legal issues.
The decision is made by a panel of judges. In Idaho, our Supreme Court has five justices. The Ninth Circuit cases are usually decided by three judges.
- Thorough legal research.
- Analysis the legal issues in light of the rule-making and policy considerations that shape the development of law.
- Presentation the facts and those issues and arguments selected for appeal concisely in a persuasive appellate brief.
A well-written appellate brief is very important. Appellate briefs get much more judicial scrutiny than anything prepared at trial because they are reviewed by a panel of judges, rather than a single judge, along with those judges’ larger legal staff, under comparatively less time pressure than exists in the trial court.
As one appellate court has explained, appellate work is “most assuredly not the recycling of trial level points and authorities” but instead “entails rigorous original work in its own right” and “offers counsel probably their best opportunity to craft work of original, professional, and, on occasion, literary value.” In re Marriage of Shaban, 88 Cal. App. 4th 398, 408-10 (2001).
After brief is done, oral argument is an opportunity to engage in a dialogue with the appellate judges regarding the issues in the case. To be effective, appellate oral advocacy must be keyed to the unique concerns of the appellate forum – avoiding emotional or fact-based pleas that may play well before a jury, but instead focusing on the dispositive legal issues, being sure to answer the judges’ questions.
If you want to see one of our lawyers in action, check out the argument of Anna Smith v. Barack Obama, et al in the Ninth Circuit Court of Appeals.