A Judge’s Ten Commandments of Appellate Practice

1. Honor precedent. If you cannot articulate a theory of reversible error based on precedent, you probably should not appeal.
2. Recognize that every case has two sides. Promptly acknowledge your opponent’s strongest points, whether legal or factual, then counter them expressly. Concede your weakest points, then explain their insignificance. Your credibility will increase.
3. Do not mislead the panel about the contents of the applicable law. Misquotation, mischaracterization, omission, and exaggeration usually are obvious and will diminish your credibility and your client’s prospects.
4. Confront applicable adverse authority expressly and early. The opponent probably will cite it, and our law clerks surely will find it.
5. Do not ask us to overrule, ignore, or modify binding precedent to reach your result. We must follow all prior panel holdings and harmonize our rulings in your appeal with all relevant precedents.
6. Do not attempt to retry the case on appeal. The facts already have been found. We may not find facts; we may only decide whether the findings were clearly erroneous, or supported by less than substantial evidence.
7. Critique the trial court’s rationale, but not its articulation. Minor misstatements of law are not sufficient grounds for reversal. (We are not teachers grading papers.)
8. Make no personal attacks, and always be courteous, especially when provoked. We respond well to attorneys who attack errors, but not to those who attack persons.
9. Do not evade our questions, including hypothetical ones. They are opportunities, not traps, and we are just trying to understand your case, not trying to trick you.
10. Do not argue—with the court or with opposing counsel. “Oral argument” is a misnomer. It is a formal discussion among informed attorneys.

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