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When Words Matter Most
Effective Advocacy in Courts of Review
 By Justice Philip J. Rarick
Justice Philip J. Rarick, '66, of the Supreme Court of Illinois, was the 2004 Adler-Rosecan Jurist-in-Residence. He visited the School of Law on Friday, March 19 and, before judging the Moot Court final arguments, gave the talk reprinted below.
Dean Lewis, members of the faculty, colleagues, students. Thank you for inviting me to participate in today's program. More than forty years have passed since I walked through the halls of this law school as a student. When I first began my studies here, John F. Kennedy was President. A wall divided Berlin. The soon-to-be demolished Busch Stadium had yet to be built. Omer Poos was still a sitting federal district judge, not a name on a library. Earl Warren was Chief Justice of the United States Supreme Court. I was a steelworker from Southwestern Illinois.
Being a union steelworker in those days was an outstanding job. It was difficult, dangerous work, but it provided steady, well-paid employment. When I told my father I wanted to leave to attend law school, he thought I'd lost my mind. Honestly, he couldn't understand why I'd walk away from something with such a future to become a lawyer. Things didn't get any better after I first graduated. I was fortunate to be hired by one of the most prominent law firms in the Metro East at a good salary. At the time, I was actually the highest paid starting associate on that side of the river. One problem. As well compensated as I was, I still made less than I had at the steel mill. That was not an easy bit of information to share with my dad. To his credit, he never said, "I told you so," but I'm sure that's exactly what he was thinking.
Changes in the global economy have taken their toll on the domestic steel industry. Layoffs have crippled the workforce of many of the old steel centers. Benefits are imperiled. Job security is a thing of the past. It isn't what it used to be. I'd like to think that if my dad were alive today to see how things turned out, he'd take a more charitable view of my career choice. I know, for my part, it is a choice I have never regretted.
When I was in school here, we had a saying: "The students who receive A's become law professors, the students who make B's become judges and the students who get C's make all the money." We meant it as a joke, but as we have gotten older and looked at ourselves and our classmates we've discovered that we weren't far off. It's something that the students in this room, particularly the students who are struggling, may want to keep in mind. Here, as in so many other things, life has a way of evening things out. So, now that I've disclosed my age and given you a pretty good hint about my GPA, I suppose I should get to the real business at hand. Our topic this afternoon is how to be a more effective advocate when you are called upon to make your case in a court of review. I realize this is not an original topic for an appellate or Supreme Court judge to address. If we tend to fixate on the subject, however, there is a reason. It is because the basic principles of good appellate advocacy seem so basic, yet are so often ignored.
The reason for that is easy to understand. It has nothing to do with the training lawyers receive in school or their professional competence. In most instances, it's simply a question of experience. Of all the cases filed at the trial level, few are tried to verdict. Fewer still reach the appellate courts. As a result, the average lawyer will have limited opportunities to write an appellate brief or make an oral argument. That's true even of lawyers with an active litigation practice. Government agencies and some large law firms may have some attorneys who do nothing but prepare or argue cases on appeal. For everyone else, the need to appear before an appellate court may arise only a handful of times in a career, if that often. It is something that most lawyers simply do not do on a regular basis.
Being an effective advocate at the appellate level requires a much different focus than being a good litigator at the trial court level. Trial litigators must be adept at motion practice and the strategic use of discovery tools. They need to be experts at unearthing facts, at finding and presenting relevant documents and witness testimony. They must know how to convey difficult technical concepts to lay jurors who may have no prior experience with the judicial system. Although the time they have to do all this is not unlimited, it tends to be open-ended and lengthy. Even where dockets are managed aggressively, a trial attorney may have years to develop and prepare his or her case. When trial finally does commence, the time a trial lawyer has to present the case is measured in days, weeks or even months.
The constraints faced by appellate advocates are markedly different. Compared to trial practice, preparing a case for appeal is a highly regimented, fast-track enterprise. Most of the procedural maneuvering is over. It's on to the merits. Notices must be filed, records prepared and briefs filed within very specific, very limited time periods. In Illinois, for example, the notice of appeal must be filed within 30 days of the judgment being appealed, the record is due in the reviewing court within 63 days after that, appellant's brief is due within 35 days from the filing of the record, and appellee's brief is due within 35 days from the due date of the appellant's brief. Requests for extensions are viewed with disfavor. In some courts, failure to adhere strictly to procedural rules will result in immediate dismissal, no excuses, no exceptions. Those unfamiliar with appellate practice are often shocked at how unforgiving it can sometimes be.
That isn't the biggest difference, however. What separates appellate advocacy from trial practice most is that the attorneys assume a vastly more important position in the proceedings. The witnesses and the evidence they have presented are gone, represented now by only a cold record. That record is available for review by the appellate court, of course, but in reality it is likely to be seen only by the judge who will actually author the opinion. Even that judge isn't likely to review it in advance of oral arguments. On my court, the records are not distributed to the judges until arguments are concluded and the case is taken under advisement. As a result, what the appellate court knows of the underlying facts when it first comes to a case is neither more nor less than what appellate counsel has told it. The lawyers become the lens through which the appellate court views what happened below. They are the filter through which the facts of the case are sifted. To the extent that the witnesses have a voice, it is the lawyers' voice now. To the extent that the parties have a presence, it is the lawyers' presence. The lawyers become the embodiment of their clients and all that their clients represent.
Fulfilling that role is a formidable challenge. That is especially true considering that counsel have two and only two opportunities for presenting their client's case to the appellate court. The first is through their written briefs. The second is through a short oral argument.
In my view, the briefs are the most important aspect of appellate counsel's presentation. The briefs are what introduce the court to the case. They are what gets the court's attention. They are what persuades the court that the case is important and deserves further study. More than that, they serve as a reference manual for the litigation. They define the parties. They explain the nature and origins of the controversy. Above all, however, they provide the court with a road map for deciding how the controversy should be resolved. They tell us what to look for, where to look and what to do when we find it. The case comes to us as a jumble of parts. The briefs tell us how to put those parts together. Although oral argument is helpful too, it comes and goes. Often, the most vexing questions do not occur to members of the court until long after the arguments have concluded. At that point, there's no calling the lawyers back. All we have are the briefs. When we finally sit down to work out our analysis and prepare our opinions, it is the briefs we will look to for guidance.
The pivotal role of the briefs brings with it special challenges. The biggest challenge is getting and keeping the court's attention. Why is that so difficult? One very simple reason is that we have so much else to read. When people think of our workload, they often imagine that all we have to do is read briefs, research case law, listen to oral arguments now and then and draft opinions. We do all those things, of course, but there is more - considerably more. I'll tell you about my court. I am sure other courts of review are similar. First, there are motions. These range from simple time extensions to requests that we exercise our original jurisdiction or invoke our supervisory authority to sort out some problem that has developed in a lower court. There are motions to stay executions and to grant parties leave to file mandamus petitions. The motions often require immediate attention and frequently raise issues as complex and important as any presented in a normal appeal. Last year we considered over 2,300 of them.
Next, there are petitions for leave to appeal. Most of my court's jurisdiction is discretionary, meaning that we have to evaluate the majority of the cases submitted to us before deciding whether to hear them on the merits. It is the same system followed by the United States Supreme Court. I haven't checked recently to see how many petitions for certiorari the nine U.S. Supreme Court Justices consider, but last year the seven judges on my court disposed of more than 2,100 petitions for leave to appeal. That wasn't divided up into 300 per judge, by the way. Every judge had to review and vote on all 2,100 plus petitions personally.
So we have the motions and we have the PLAs. We are also responsible for regulating the legal profession, so we have attorney disciplinary matters. We are responsible for operation of the state's court system, so there are ongoing issues regarding personnel, capital improvements, contracts, budgets and scheduling. Proposals to improve our rules of court are ongoing and invariably involve lengthy memos. The downstate justices are responsible for organizing the admission ceremonies for new lawyers held twice a year. In addition, there are judicial conferences, educational conferences, speeches to give and various official functions that the members of the court are expected to attend.
It makes for a full day. The practical consequence, from counsel's point of view, is that briefs need to be as short and to the point as possible. Compliance with the court's format rules is your first priority. Without that, your brief will never make it past the docket clerk's desk. Once you've dealt with the technical requirements, however, nothing is as important as brevity. The page limits in Illinois are generous: 75 typewritten pages for the main briefs, 27 pages for the reply brief. Stay within those limits.
We routinely receive motions from lawyers who claim their cases are so complex, so unique, so extraordinary, that they cannot possibly state their positions unless they are given over 100 pages to do so. Although we occasionally allow such motions, they are nearly all misguided. Nothing is less welcomed by an appellate judge than a brief whose page numbers have hit the triple digits. When such a brief comes across our desks, we know that it will be a struggle to find the time to read it all. We know it will be even more of a struggle to remember it all. And we know, from experience, that even if we read it and even if we remember it, the bulk of the points raised in such a brief are apt to have no impact on the outcome of the case. You may believe you have 14 good points to make, but stop and think for a moment. When was the last time you read an opinion whose result was based on 14 different issues? Probably never. Most appellate decisions turn on no more than a handful of core conclusions.
There is a reason for that. It isn't that we are lazy. It isn't that we are not interested. It isn't that we are anti-intellectual. It has to do with the function of the courts. We are judges, not law professors. The point of our work is not to educate people on the law. It is to decide specific controversies between particular parties. We develop the law in an opinion only to the extent necessary to decide the case before us. We must be mindful of the implications of our decisions on future cases, but it is the case before us today, not the cases that might arise tomorrow, that concern us most. We need the principles that will help us resolve today's case for the parties before us now in accordance with the law established by the legislature and prior court decisions. The goal of your brief is to provide us with those principles. Nothing more. Nothing less.
If you feel a compulsion to explore every nuance of a legal problem, there is a place for that. It is a law review article. The editors at the law reviews will be interested in hearing your reflections on the law and the legal process. An appellate brief, by contrast, should be limited to the points necessary to sustain your client's position. Make those points and move on. The same is true with oral argument. Nothing will impress the court like brevity. It has always impressed me. The lawyers who can say the most in the fewest words are the ones I have always admired. What they do is an art. U.S. District Judge Pat Murphy is a good example. I had the privilege of hearing him argue cases before he took the bench, and he was a master at economy of language. Seek lawyers like that out. Watch what they do and then do it yourself.
While we're on the subject, let me also suggest that oral argument is something that should seldom, if ever, be waived. Even in cases that appear straightforward, there may be issues that you did not regard as important but which are of great concern to members of the court. Oral argument is valuable if for no other reason than it gives you the chance to answer questions from the court and address those concerns. Clarifying problems when the court is first hearing a case is much easier than trying to sort them out in a petition for rehearing after an opinion has been issued. We want to get things right the first time. Having you present for oral argument will help us do that.
Returning to the matter of brevity, I realize that being concise does not come easily. Writing itself does not come easily, especially if you do not do it on a regular basis. It can be a laborious process. Someone once remarked that there is no good writing, only good rewriting. I've heard that quote attributed to people as diverse as Winston Churchill, Ernest Hemingway and Louis Brandeis. Since Brandeis was a lawyer and a judge on a court of review, we'll give him credit today. Having both drafted and read innumerable legal briefs, he appreciated the point I'm trying to make as well as anyone.
The benefit of brevity, in addition to keeping the court's interest and attention, is that it forces you to think your case through thoroughly, to identify its essential elements, to cull out everything that is not essential. Brevity brings focus and clarity. I can't tell you how often we receive voluminous briefs that attempt to cram in every factual detail in the record and every legal principle the author thinks might possibly be relevant. Sometimes you get through one of those briefs and are left with the feeling that you have no idea what it's really about. A brief like that is a dead giveaway that the attorneys don't really understand their case either. They know it came out in a way they don't like and they can identify various mistakes and problems. It is clear, however, that they have no coherent theory of whether, why and how those issues should affect the ultimate outcome in the case. They put the matter in the appellate court's hands and hope that somehow, in our wisdom, we will be able to sort it all out. Sometimes we can figure it out on our own. Trust me though, you do not want to leave something so important up to us. Judges on courts of review come from many different backgrounds and have many different ideas about the law and the legal system. If you leave it to us to sort through a pile of legal concepts you have just dropped in our laps, you may find your case transformed into something you had not imagined and did not want.
I will repeat a point I made earlier. Your brief should be an instruction manual. Its purpose is to troubleshoot what's wrong with the case, explain why it's wrong and tell us how to fix it. As you give us those instructions, no step is more important than identifying the appropriate standard of review. In Illinois, the rules of court now expressly require the appellant to include a concise statement of the applicable standard of review for each issue raised. Even if the jurisdiction where you practice has no comparable requirement, you should do it anyway. Do not assume the reviewing court will know. Sometimes judges do not know or have forgotten. In addition, the issue is not always clear-cut. There may be disagreement about it.
The importance of correctly identifying the applicable standard of review becomes apparent when you consider how much the standard can vary from issue to issue. At one extreme are pure questions of law, such as interpretation of a statute, which the appellate court reviews de novo. On such questions, the appellate court is not bound by anything done or said by the lower court. It is free to exercise independent judgment.
At the opposite extreme are matters that fall within the trial court's discretion, such as whether a party should have been given time to amend pleadings. Matters of that nature will be overturned by the appellate court only where the trial court's actions are devoid of reason. Questions of fact are judged by a manifest weight standard, under which the trial court's judgment will not be overturned unless, "upon review of all the evidence in the light most favorable to the prevailing party, an opposite conclusion is clearly apparent or the fact finder's findings are palpably erroneous and wholly unwarranted, are clearly the result of passion or prejudice or appear to be arbitrary and unsubstantiated by the evidence." Then there are mixed questions of law and fact that, in Illinois, are reviewed under a "clearly erroneous" standard that falls between the manifest weight standard and de novo review.
A brief should begin with the standard of review because the standard of review tells us how far we should go in evaluating the propriety of what occurred below. It is the yardstick by which we measure how much deference we should give to a lower court's decision. It delineates the boundaries between the lower court's decision-making power and our own. Where that line is drawn can be and frequently is the single most important factor in determining whether the lower court's judgment should be affirmed.
There are other suggestions I wanted to share. Taking care to understand and explain who has the burden of proof and the burden of persuasion is one. Making sure you provide the court with specific page numbers when you cite to the record is another. I don't have time to discuss them all this afternoon. I've already gone on at length, and I want to leave time at the end for questions. For now I'll leave you with just one more piece of advice: be honest. Present the record accurately. Describe the controlling legal principles fairly. Do not embellish the facts. Tell the truth. That may not be enough to win the case you have today - you sometimes can do only so much with what you have - but it will earn you the respect of the court. In the end, that is what differentiates the great lawyers from the lawyers who are merely successful.
Thank you.
 (A question and answer period followed. Justice Rarick then added the following observations:)
Although my formal remarks have concluded, I would ask your indulgence to make a few additional comments of a personal nature. When you graduate from law school and begin the practice of law, it will be the most exciting time of your life. It is also likely to be the most time consuming. Be committed to your clients, work hard for your employer, but above all else, make and take time to share with your family, your friends and your community. Help at home and at school. Volunteer. Become active in civic affairs. Give back a bit of the gifts you have been given. Share your good fortune by helping those in need. Finally, take care of yourself. Your health is your greatest asset. You are the only person who can control it, and every great thing that lies ahead of you depends on it.
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