Pennsylvania appellate lawyer and nationally known appellate blogger Howard Bashman recently offered some sage advice on brief writing and oral argument in The Legal Intelligencer [subscription required]. Bashman writes that now, more than ever, the briefs are key to success on appeal. Oral argument is secondary because, even when it is available, “[y]ou cannot expect to rescue an appeal at oral argument that you have already lost on the briefs.”
Among Bashman’s advice on brief-writing is this nugget: “Submitting a brief that is credible, reliable and subtly persuasive is in my experience the best way to earn or maintain the trust of the decision makers and also the most likely way to cause them to conclude that your side should prevail.” Bashman goes on to explain why the contrary approach does not work: “The more that an advocate needs to shout, exaggerate, or declare in bold, italicized and underlined text just how right he or she is and how wrong the other side happens to be, the less likely a neutral decision maker will find the presentation persuasive. Indeed, as counterintuitive as it may sometimes seem, the more egregiously incorrect a trial court’s ruling or an adversary’s argument is, the less strident one should be in order to usefully and persuasively demonstrate the errors at hand.”
We could not agree more.
