Building a cathedral: How to succeed in appellate court

by Willis P. Whichard

Willis P. Whichard is a member of the Moore & Van Allen law firm, Research Triangle Park office, and chairs its Appellate Practice Section. He has served on the N.C. Court of Appeals, as an associate justice of the Supreme Court of North Carolina and as dean and law professor at Campbell University. He received his bachelor’s degree and law degree from the University of North Carolina and master’s and doctoral law degrees from the University of Virginia.

Appellate-court decisions rarely secure front-page coverage. When they do, it is usually because they have resolved — perhaps temporarily, perhaps long-term—a highly controversial issue of social policy. But absence from headlines does not indicate insignificance. Every month these courts render opinions that will govern business decisions throughout their jurisdictions or at least significantly influence them. The role of the business lawyer in developing and presenting these cases thus merits consideration.

Although an appeal comes late in the judicial process, preparation for it should commence when the lawyer initially encounters the case. From the first communications with the client, the lawyer should be keenly aware that the case could meet final resolution in a court of last resort. The initial conversation with the client thus should include the prospect of an appellate argument.

The careful lawyer will then think about the possibility of appeal throughout the litigation process. It may well be that an appellate court is where he or she secures the advantage, but if so, this gain may have had its genesis at a small step in the pretrial or trial process. Opposing counsel may well consider only the desired impression on the trial judge or jury at a given moment. This can be a fatal mistake. The question at every stage should also be, “How will this look in the record on appeal?”

Two threshold questions apply in every case:
First, can I appeal? The basic determinant is, is the action final? The appellate courts do not want cases to be like yo-yos, going up and down between the appellate and trial courts. They thus impose a finality requirement before cases may be appealed. There is one category of exceptions: If a ruling affects a substantial right, it can be appealed immediately notwithstanding lack of finality. The lawyer must consult both the appellate rules and the large body of case law in determining whether a substantial right is implicated.
Second, should I appeal? Former Supreme Court of North Carolina Justice Harry Martin, my former colleague in the judiciary, says most appeals are taken in the agony of defeat and perfected out of pride. Although the client makes the ultimate decision, the lawyer performs an important counseling function. Clients need to know they are entitled only to a fair trial, not a perfect one. The basic test is whether it is likely that the trial would have come out differently but for the alleged error or whether the law was properly applied to the facts. At the conclusion of a trial, the losing lawyer should reassess the case with the client and make a new determination in light of education derived from the trial about the merits of attempting to secure a different result at a higher judicial level.

If these threshold questions are resolved in the affirmative, the Rules of Appellate Procedure become the lawyer’s road map. Their purpose is to provide an orderly procedure for presenting a trial-court action to an appellate court for review. They are not designed to set traps for the unwary, though in recent years they became such. But the Supreme Court of North Carolina has directed the Court of Appeals to cease using the rules as a docket-control mechanism.

Generally, the rules are not difficult to interpret and apply. A novice appellate lawyer, however, may be well advised to consult an experienced appellate lawyer when encountering intricate problems with the rules. Rule two of the North Carolina Rules allows the appellate court to suspend or vary the requirements “[t]o prevent manifest injustice to a party, or to expedite decision in the public interest.” But it is a worried lawyer who awaits this manifestation of a court’s grace; to assiduously follow the rules rather than plead for juristic mercy is the far more tranquil course.

The brief is the lawyer’s first opportunity to make a favorable impression on the appellate court. The old saying, “You never have a second chance to make a good first impression,” is trite but true and highly pertinent. The court’s first impression may well be its last. This is inevitable in the Court of Appeals with the many cases that are not argued orally.

A single admonition aptly summarizes the appropriate approach to the preparation of appellate briefs: Prepare thoroughly, think logically and write clearly. In my days of appellate judging, if the appellant’s brief was obscure, I knew, even before reading the appellee’s brief, that the appellee would almost certainly prevail.

The good appellate lawyer will meticulously proof his or her brief before filing. It is not always sufficient to rely on modern technology. I once read a brief in which the lawyer was relying heavily on “precedents,” previously decided cases that he contended were determinative. At every place in the brief where he attempted to use the word “precedent” it came out “president.” A computer spell-check will not catch errors of this nature. The outcome of the case was not affected, but the court’s view of the lawyer and the caliber of his work was.

If allowed, oral argument also merits thoroughness of preparation and logic and clarity of position. If briefing is well done, oral argument rarely alters the judicial mindset. Again, first impressions tend to last. Changes of mind do occur, however, and oral advocacy gives the lawyer a final opportunity to obtain a favorable result.

Although thorough preparation is advisable, the lawyer should not be so set in a given mold that he or she cannot shift course when the court so suggests. Questions from the bench are not necessarily hostile; rather, they often are designed to redirect the lawyer to what the court, or at least one of its members, deems important. In closing, I would suggest that there is a distinctly American judicial tradition. It did not exist at the formation of this country but was created during the tenure of John Marshall as chief justice and largely through his efforts. At its inception, judging was not regarded as an exercise in making law. The law was viewed as a mystical body of permanent truths, and the judge was seen as one who declared those truths and made them intelligible — an oracle who found and interpreted the law. Today that view is largely discredited, and judges are acknowledged to be lawmakers.

The point here is that they are not alone in that process. Advocates before the appellate bench are an important component of the endeavor. Every law student is familiar with John Marshall’s famous aphorism that “[t]he power to tax involves the power to destroy.” History has largely forgotten, however, that Marshall derived the concept from the following in Daniel Webster’s argument for one of the parties: “An unlimited power to tax involves, necessarily, a power to destroy.”

Justice Robert Jackson related a parable about three stone masons who were asked, one after the other, what they were doing. The first said: “Earning my living.” The second said: “I am shaping this stone to pattern.” The third lifted his eyes and said: “I am building a cathedral.”

So it is with the lawyers who labor in oral advocacy before our appellate courts. The attitude and preparation of some show they have no conception of their endeavor higher than to make a living. Others are dutiful but uninspiring in trying to shape their cases to a winning pattern. Still others stand at the bar knowing they are contributing to the building of the cathedral of the law. It is they who best serve their clients, the judicial process and the greater society governed by the courts’ decisions.