So you want to be a good appellate lawyer? Here is 90% of what you have to do:
- Read the record.
- Study the record.
- Master the record.
There is no shortcut. If you write a brief or deliver oral argument without knowing the record, you are wasting the court’s time and your client’s money.
Don’t take my word for it. Listen to Judge Alex Kozinski:
Arguing about the law in the abstract is interesting and fun, but what wins cases is the lawyer’s ability to marshal the facts littered over an extensive trial court record in a way that’s consistent with favorable controlling authority. It is true that there are some cases where the facts are clear or stipulated, and the law is the only issue. But these are the rare exceptions. In real-life appellate advocacy, the record plays a key role, and a lawyer’s mastery of the record—or lack thereof—often makes the difference between winning and losing.
So if you are handling an appeal, the first and most important thing you need to do is get your mitts on the record. In Louisiana appellate courts, all it usually takes is a phone call to your friendly clerk of court. Once you have the record, make a copy for yourself. (You will need your own copy later—trust me.) And plan on spending the majority of your time poring over the record. And plan on spending the majority of your time learning the record.