By Jon Schmidt*
Introduction
On March 15, 2019, the Appellate Practice Section of the Minnesota State Bar Association held the annual Appellate Practice Institute in conjunction with Minnesota CLE. A panel consisting of Justice Natalie Hudson, Judge Matthew Johnson, and Judge Peter Reyes discussed tips for appellate practitioners. This article outlines tips that were shared by the appellate jurists.
Briefs Tips
Briefs should be just that: brief. Brevity is a good thing. Cut out repetition. Cut out telling the court what you are about to tell them (instead just tell them). Cut out long case summaries where they are unnecessary (unless you are comparing your case to something that is nearly identical).
Clarity is key. Clearly state the legal issues and the issue statements. Organization within an appellate brief helps with clarity, focuses the argument, and often keeps the brief shorter. Look at your table of contents to determine if the brief is organized well. Your table of contents should tell the story of what happened, what the issues are about, and why you win.
Don’t throw mud. Drop the hyperbole.
Finally, candor is of the utmost important. It is also an attorney’s ethical duty. Don’t overplay your hand. The facts are what they are. The record is what it is. And a case says what it says. If you have to concede an issue, concede it. The appellate courts will greatly appreciate you making concessions where you must.
Images in Briefs
All the jurists agreed that images can be very useful. Images are not necessary in every case, but in certain cases a timeline or graph can be extremely helpful. Maps, in particular, can be quite helpful to orient the judges to the facts of the case. When using maps or images, they can be placed right into the text of the brief or included in the addendum.
Judge Johnson reminded everyone that the appellate rules (Rule 130.02) allows litigants to put up to fifty pages of additional materials in the addendum. A map or image can be useful material to include in an addendum. Litigants should also consider including the key statute, the contract at issue, important exhibits, or the most powerful testimony in the addendum. Use discretion, but use the addendum.
Technology on Appeals
The jurists had different approaches to technology. Judge Reyes only reads from his computer – the briefs, cases, record, etc. He noted that, as a result, footnotes can be distracting because he needs to scroll to the bottom of the page to read the footnote, then scroll back up to resume the text.
Judge Johnson and Justice Hudson blend between reading on computers and reading on paper. The approach depends on the case, the location of the argument, and where the Judge or Justice is preparing. Often, both will read on their computers when at home or working remotely.
Oral Arguments
Welcome questions. Oral arguments is not the attorney’s time to give a speech or a closing argument. A good advocate will engage in a discussion about the case with the panel. This is the first time the judges are talking about the case with each other and you, as the litigant, should engage in that conversation.
Answer the question. If you don’t answer the question, you will be asked the question again. The judge is asking the question for a reason and wants an answer.
Be flexible. An attorney may want to approach an argument by discussing the issues in order. But the judges may be most concerned about issue 2, not issue 1. Be prepared and flexible to address the issue that the judges want to discuss. Do not tell the judges that you will get to that issue later (or in a minute).
Conclusion
The jurists were complimentary of Minnesota’s appellate bar. The tips that the panel offered can assist the appellate judges in reaching their decision and, ultimately, in helping the litigant be successful on appeal.
*Jon Schmidt is an Assistant Hennepin County Attorney in the Special Litigation Division – Appeals Unit, focusing exclusively on criminal appeals. Prior to joining the Hennepin County Attorney’s Office, Jon was a shareholder at Briggs and Morgan with a varied appellate and litigation practice. After graduating from William Mitchell, Jon clerked for Judge Natalie Hudson on the Minnesota Court of Appeals, and then for Judge Myron Bright on the Eighth Circuit Court of Appeals. Jon is also a Fellow of the American Academy of Appellate Lawyers.