Those who read the 3rd Circuit opinion in the Pennsylvania case will notice that they took the entire hodge podge of arguments in the Trump campaign brief, reorganized it, and then dismantled it. This made me smile because it reminded me of my days doing appellate practice.
An effective appellate lawyer doesn’t just read the opposing arguments and respond to them. This method almost guarantees you will miss something. Instead, the better approach is to first pretend you are on the other side of the case and systematically develop the most effective arguments you can. Only then do you develop your brief. So, yes, you are effectively preparing two briefs, but it ensures that you completely prepared. Besides, it makes organizing your own thoughts much easier and helps to create a clearer picture to present to the judge.
This do-both-sides approach also keeps you from being blindsided during oral argument. That happened to Guiliani when the judge asked what standard of review should apply. He actually didn’t know so made something up. The judges were not impressed.
I remember one oral argument where the appellate court judge asked me if I was familiar with a case that had not been cited in either brief (judges do their own research). I replied that yes I did and proceeded to explain why it didn’t apply in our case. I would have never found the case if I had only been responding to the other brief. [Written November 30, 2020]
No comments:
Post a Comment