Winning Appeals By Pinpointing The Issue – Both In America And New Zealand
After two decades of litigating in Florida, the author passed the New Zealand Bar examination, migrated to its capital, Wellington, and for three years practiced exclusively in the highest Court there - the Court of Appeal. Those years were especially exciting, for during that period, the Court of Appeal severed its ties to English appellate procedure and adopted a modified version of that practiced here.
Partaking in this evolution solidified many impressions that the writer had about our own appellate practice, some of which he will share with you in this paper. If you are unaware or have forgotten them, reading this paper might profoundly raise the level of your appellate proficiency. This is especially so, if you are a trial lawyer who only rarely practices appellate law.
The Appellate Issue Defined
An "appellate issue" is the ultimate question that a court must answer to resolve an appeal. Usually, it requires enormous time and energy to refine it down to this degree. Identifying an appellate issue is like playing a game of chess with one's self - with the goal of determining the "checkmate" move.
Development in the English scheme
In the English "oral tradition" scheme of appeals, the appellate issue is generally developed during oral argument. At the commencement of the argument, the Barristers (lawyers whose practice is limited to the court room) pass to the Justices an outline of their presentation. That is the first time that the court (and counsel's opposition) become aware of the parties' arguments on appeal. Briefs are neither filed with the court nor exchanged with opposing counsel before then.
Barristers usually have unlimited time to argue their case. Some arguments run a week or more. Prior to the oral argument, other than having reviewed the appealed judgment, the court is usually unaware of anything else regarding the case. At the start of nearly every oral argument, Barristers inform the court of all the case's facts, then discuss its litigation history (including the testimony of all witnesses), and finally begin to argue their position. Most often, it is at this point in the argument, during the colloquy between the Bench and Bar, that the correct appellate issue begins to arise. Later, toward the end of the oral argument, they solidify it.
Development in our Appellate System
Under our appellate scheme, the court has placed the burden squarely on lawyers to pinpoint in their briefs the exact issue or issues that it must resolve. This probably is because the court simply neither has the time nor the inclination to do it for itself. For this reason, it is imperative that the appellate issue be identified in the brief with precision. This fact is one of the paper's main points. Before the New Zealand Court of Appeal amended its procedure, one of its most respected Justices alerted Barristers about the importance of properly defining the appellate issue in their briefs as follows: "The most important substantive requirement
is to define the question in issue with precision. . . . In many, if not most, cases the definition of the issue will dictate the outcome of the appeal. In my view, this is the most important aspect of the advocate's task. It can truly make the difference between winning and losing. Properly executed, it means that the counsel who can most successfully identify the question in issue will have captured the ground on which the battle will be fought." As several appellate judges in Florida have confirmed with the author, the same wisdom rings true in the United States. By precisely identifying the appellate issue, the advocate has "invited" his or her opponent, and the court, to answer a question that should only have one answer - that favorable to the advocate's position. Furthermore, they also agree that by pinpointing the appellate question, you will have greatly enhanced your chances of ultimate victory. In closing, what does a sharply honed appellate issue look like? Compare the differences between the two examples. First, "Whether the Trial Court Properly Granted a Summary Judgment on the Appellant's Conversion Count?" Does this give the reader any clue why the trial court correctly granted a summary judgment? Hardly! Now, how about this one? "Whether Summary Judgment Was Warranted, When Undisputedly, The Appellant Had No Property Right In The Allegedly Converted Item?" If, in fact, no evidence supported the Appellant's property right in the allegedly converted property, and your statement of the law was correct, your argument should be "short and sweet", easily understood, and most likely successful.