Even though I write all the appellate briefs and argue all the appeals for my office, and even though I have been blogging about New York personal injury issues for almost a decade, and even though I spent two years clerking for an appellate court (Fourth Department in Rochester) before I began representing personal injury victims, I just realized I have never blogged about the process of arguing an appeal. It’s time!
I’m not going to talk about writing the brief: That’s way too technical and boring for this blog spot. I’ll address the actual oral argument.
By the time we get to oral argument, both sides have researched all the law and how it applies to the facts of the case. Both sides have made all their arguments in writing – in the “Briefs”. The Appellant fires the first salvo with an Appellate Brief arguing for a reversal or modification of the lower court’s order or judgment. The “Respondent”, who won in the court below and wants an “affirmance”, then files its Responding Brief to try to undermine the arguments in the Appellant’s Brief. The Appellant gets to fire the last shot with a Reply Brief, which tries to poke holes in the Responding Brief.
As you can see, the Respondent’s Brief is sandwiched between the two Appellant Briefs. Big advantage for the Appellant, right? Yes, but that’s because the Appellant starts off at a disadvantage. In civil cases in New York, affirmances are twice as numerous as reversals (including modifications). After all, the trial court was usually right.
So now let’s get to the oral argument. In State Court (where I usually argue), there is a panel of five judges. In civil cases in New York, your argument time is usually limited to 10 minutes. In some appellate courts – such as the Third Department – if you are the Appellant, you can reserve some of those minutes for rebuttal. When I am the Appellant, I like to reserve at least 2 minutes so that I can rebut the Respondent’s oral arguments.
Arguing an appeal is very different from arguing your case to a judge or jury. When you do your closing argument at trial, no one interrupts you. You can stick to your script if you want. But in most appellate arguments you won’t even get one minute into your presentation before the judges start pummeling you with questions. You have to be flexible and nimble. Your arguments have to shift to address the court’s questions. You can’t be wedded to a script. Since you never know what the Court is going to ask you, you have to have a thorough knowledge of the Record on Appeal, the relevant statutes and case law, and all the arguments in the Briefs. You have to be able to “go with the flow”.
I just argued an Appeal (virtually because of the pandemic) as the Appellant last Monday in the Third Department Appellate Division, which is in Albany. Here’s the link to the video of the argument. You can watch it for a bit just to get an idea of the process.
The issue was whether my client had filed her legal malpractice lawsuit too late – after the statute of limitations had expired. I argued that she was not too late because of the “continuous representation” doctrine. The lower court had tossed the case out, and I was trying to get it reinstated. Frankly, I think I won. But I won’t know for about six weeks – the Court takes that long to consider all the Briefs and oral argument and to write up a formal Decision.
As I was saying, you can’t rely on a script for oral argument. But that doesn’t mean you don’t have some kind of script in your head. Never READ your argument! You have to look at the judges and speak to them. I usually have a legal pad with a few notes, key phrases, key citations for reference. I always have my first few sentences virtually memorized, and my concluding sentence or two as well.
The fun of arguing an appeal is in the challenge of “thinking on your feet”. It’s a great test of your mind’s nimbleness, agility, and ability to store and retrieve information in real time. Arguing an appeal is not for the faint of heart! I have been arguing appeals for more than two decades and my heart still races in the seconds before I start my argument.
Of course the biggest thrill is when that Decision is handed down weeks later and you have won! I love making that phone call to the client with the good news. I have been fortunate to have won most of my appeals. Of course I have lost some too, and that is the opposite of fun. If you want to do this line of work, you have to be able to suck it up and move onto the next case. Some elected officials need to learn to do the same! with election results!
Keep safe!
Mike Bersani
Email me at: bersani@mbk-law.com I’d love to hear from you!
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Syracuse NY Personal Injury Lawyers
Michaels Bersani Kalabanka
315-253-3293