FEATURE The wrong stuff:' How to lose appeals in the Court of Appeal Editorj NOWFor mPrnnwn n j w ~d , L j o n t d t e with L I UAto r d appellare advocacy. There were very few of us in the field thcn. i u n n o r rcmcmbu whether we taught it wrll or badly, buc it didn't marrcr, beuusc we we= theonly game in rown. Thcsc days. however, it seems a if evcryonc md he? sisur' is -chins a p p d h e ~WUCY.People wriu books and $,ve speeches and nu!seminars abour it. T b t M S o c i t ~ / o u r n a l e v mdcdiurcd r whok issue to it.' SO the is no longcr my prince prexrve: it has been uken over by ocher, m d bcrcrr, rercfrerr. Then. rcccncly. I had r good idea.' Peopie were sa busy taching lawyers how to win a p p d that chcy were complaely neglecting the a n of loring appeals.' And so I h v e decided to exploit that vast, uncapped m v k t In this arride. I propox to share w i h you seven helpful tips deigned to ensure tIut you larc your ncxr appul in he G u n of Appd.' Using about two or r h ~ c c orhese f helpful rips should be e n o q h to do the job; using more will gurintcc a 10s.no marvr how good your use. P l u do ~ not try co be crcadve and drum up tips of your own. Deviate from chis Iin ar your own risk: if you do, and if by some accident you win. don't b t m c me. I. Iwish L could uy rh?t chi( t ~ t l euu original wich me, bur I un'r It w u h e rrtle rha: Alex Kozinskr o f thc Ninrh Circuit Gun o f A p p d gave ro a piper hc delivered to a rnccung o f the krcc Bor d Monnna i n 1997. Bur i t wu such a gcu name that Idecided ro r d ic and pw i t off u my own. igendcr-rcnticive paper. If 'her" ofFenb you. m d 'his.' 3. Or, if you prcfct. 'brother': see me 2. 4. Surnrncr Irrue. Augurc t99Y, roi. 18. no. 2. The m u contained u r i c h by Finlayson J.A. and Lukin J.A.who are mcmkta of the Onuria Courr of Appul, and by Binnic J. urd Blur J.. wrho arm'r, bur who rppirendy know a lirtlc about &cxy. They dl got JKir pictures on t k cnvcr. That's more than Ip r h r thir ptecc. 5. Thu wnuncc i s not true. Ssc nocc I. 6. I'm nor u x t l y sure &y lawyers would uunt ro lose a p p l s . bur there a x so many o f rhcm trylng do it CIUC there mwc be a good reason. Ic probably h u samcrhing to do Guirh tax wrire-of&, which a= beyond the Tip I: A i m ffle an i n c ~ m ~ r e h a n s i b tacturn ~e t h e Rules of Civil Procedure conuin a number of provisions governing the brm and a n e n t of hctumc. Ignorc thcrn.' Every o t h a lawyer ignores them; why shouldn't you? La tfic courr know righr off the bar that you have a rorrcn cue by filing a lengthy haurn' fitled with gobs of conflicting evidence md leng&y q u o t a from irrelevlnr uw. And, while you arc ignoring things. ignore the rule'" rhac requires doublcspacing, I&-hand rnuginr of 40 millimerru. charzuen OF ar l u r r 12 point or 10 pitch size. and good-qdiry paper 2lG x 279 millimara in size. Makc repeated nndom changes in rypc size. l m c r spacing, and margin widths. Keep the concent confusing and disorganized. Convey the methat your argument is not even remorciy capable of prcrencation in a simple. direct fashion. Simple argumnrs u c usually winning arguments and t h c r e f o ~ arc to bc scrupulously avoided. G u n s e l who are 6miIitr wirh brugn l a n y q s " have a grcar adw~ugcin the prepamion of hcnrms. Emulatc. if possible. chase Lnguagcs that &kc thc reader m disrrtvion waiting for thc verb &at is never disclosed until rhc conclusion of the mtcncc or. betrcrsrill. rhc p q p h . Lum to write rcnccnccs char go on cndIculy, senrenca that a n filled wirh dashes and with subordinire &uses that are by the time h e xncencc is donc hopelosly unrckted ro anyrhing ar che beginning.'*Wrirc your facrum out in lon@d. then sccikc out 111 rhc periods and substitute conjunctionsl'so char the h r n becomes one long undivided sentence. NOW insert. in completely inapproprktc places, puncruarion - - 2. ThL IS w p c o f thir paper. nor t o mcnrion rhc cxpcnk of chc rurhor. 7. W ~ l I eun in a confessing mood. I should also rcknouricdgc r h . while most d t h c ~uggacionr i n thlr papa are mine. r couple of chcm wcrc &a scoten from Judpc &rinski. But Idon't feel all rhar badly about ir. Cnhbiog the product o f o r h n peoplc'c labuur and publishins a t u n d u p u r own name ir =liar appeliarc iudgo do for a living. 8. For cumpic. Ruler G 1.1 1 and 61.12 use the word 'concise' (asIn 'concise overview,' 'concise summary.' and 'concise ugumcnr') r cnrrl o f SIX timer 11 ir widely rumoured that 'concise" was a cycypgphical nror and rtrrc the ward rhat k g k t r i v e b u n s e l lnundcd to uu was 'vcrbocc.' Ihave been unable ta find myone who IS p n p u c d tn c ~ n t i r r n that m i r t h for h c rccord 9. Them k a pn& d i r a ~ r o n&at fimics hauM to 30 pap. lgnort that. I B U ~ . 10. Rule 4.01. if you must know. we 4.01 was t k w i n n a I n 1398 and 19')') of the prize awarded for 'The k t Wdl-Known md Mort. G n t n v e n c d Rule o f C~vilProudurr" It i~ u i d to i,c scmngly in the running for the current year's rctle as wrli HonourrMc I I.Other than Lcin. L r r n is noc 2 foreign Lnguqc. plr.~usdct ,qvvin G .~ ~ Jude ~ of the . Cwn olAppul r p d ir for hours ~ n c l .coun hours on a daLy buu. &pcdfar Onmi 12. This sentence is r p o d illuxration o f what t mrJn 13. hltcrnnins k w m 'and' and -hut' m c n l rim,, 11, a h wnrcncc is a wLl mcrhod of arraining rhc dc.~ri,f c ffuc. .-Tke Adwernces' Socleq Journrt IAugust 2000 muks such as comrms. colom. and xmicolons. spfinkled in such a way as ca make your h cornplaely incoherent." Tip 2: Never k g l n a t the boginntng One of the macc common miscaku in appdLu admucy. nude usually by young counsel. is to argue rhcir appcll by bcgnning at rhc beginning. This immediareiy sign& to rhc cow char it is &ding Grh a novice. DOas senior counsd do. Plunge into your a p r n e n c roughly wo-&ids of the m y througtr the facrs and the law you want the c o r n to think about. To muter this skill, try h e foliowing apcrimcnr. Go hdrnc tonight and r u d a nuncry uk to your favourice child or grandchild." Don'r bcgin ar the bqnning. &gin well past the middle. T&, for m p l c , 'Licrlc Red Riding Hood." Bcgin at h c point where the Wolf is lying in bed in Grandmother's cocagc dl drcrccd up to look like Granny,and Licde Red is skipping up Lhc h n r path wida her b& otgoodies. Or, if p u prtfer, bcgn at 'Oh, Granny, what big cyrs you have.' ObKwe your urbjccti eyes carehUy. If you have a stopmub nJlablc. record how long . over in rnysufied incomprehension; it tlka before her q e s g1aze then tord confusion: and then, final15 resigned indifference. Now think hack quickly to the l o t time you Ian in the G u n of A p e .Remember the wry m e leaks of incomprehension, anfusion, and indifiercnce you saw rhcn?'' Now you know you are on chc right track flp 3: Never s t a r t wtth your strongest p i n t Thac is usually a fiir hpse of rime bmvecn the time yuu a& from a trial judgment and tfie timc your q p a i is heard.'' II, dwing char period, you have been fotiowing the dneloprncnc of rhc Iaw &lIy by noting d of h e helpful s ~ u o made m by colleagues. Gicnds, and rhc jinirorial s t a i n your office buildingwith whom you hlve dkuscd your are,you will have b o i i your ugumcnt down ro about fifrecn or nvcnywell-honed poinu. Ar chis sugc, you shoJd writc all o f h e poino down and asign nwnbm to them in h e order c h you ~ ~ chcsrvengrh s of uch poinr It d o e not m a m w M e r thc), arc numbered in ascending order of i m p r u n e or in descendingordu o f i r n p o m n e The key is ro cc14. Ar originally &run. this sentence r e 4 WOW:imw in. mrnplcui* inrpproprirtc p 1 . c ~p n c m a i i n muL such as comms colonr;md semi-colons: sprinkled in such a rrr)..r,to rmkc your &rum compkdyr incokrcnr' Srr bornow 12. IS.Thb experiment is best pcrfotrned with children bcr*ocn the agu of 6ve and w e n . r h o are nid. g c n d y spakink to appmximuc m o n doaclT the IM! of sophiuicarion and m e n d a i r y of rhe a m r g c zppdlmtc court judge. 16. Piagcr. Jean. %Lid KidcAwS-fhn, Mou/udp(1994). 25 Gn. Ju.Child f'sych. 436. suggau that many judgca morc dirarly fmm mmificd incomprchuuion to roigncd indiff~cncc.bypuaing che suge of c o d c o n l i o n . 11 k n ' c marru. redly. ro long rr rhe ultimare objective of i n d i k n c c raignd or otherwise. u achieved. 17. The 6un of Appel k p s muapering rhat it b rrdudq drc c k c 1% to romc Lughindy &en period mrrnrd in monrbr. not yurs. Thu c o d y orcr(011h tk ficc k c mou counsel need a minimum of ruo or chm yan in order to r e h h t k r maker. tigu* out wtut the w e b ri) abour, md unlevh m army of juniors to -cb m r y ore d c c i i ham Ccnuis m h e p m t day in the n i n h o chu ~ t h y win find come peripheral propositron. howimlevant. Cr inxrcion in the f m . member co bury your nmngaf p i n t lppmximatrly h d h y bc. w e n your first point (whichshould uuully be your makcst) and p u t last point (which should ucuxlly be your second-s~rongar). Whar photocopying your Gaum in prepsatton for filing with thc a r c , makc sun: that, when your phomcopier m c h s the page on which your svongur poinr rppcYs it is drnosr complcccly out of roncr and that c k glass reflaxor hu been scratched qcatcdly wich a lencr opcncr. &us laving the page so fYnt as co be btrJy mdsblc and st& with annoying, disuacring line." Tlp 4: Never say the maglc words S u p p p u r mrire appeal rum on the language ofa seaion of a sntucc ar a pmgraph of a contract. And supposc chere is a dis- dnct dangcr that. if you let the c o know ~ whar ~ prcciscIy those win your appeal tunds dawn. What should you do? This onc is a no-bnincr. Keep chose words away horn the coutis view at all costs. Do nor quore chcm. Do not set thcm out in F u r kccum. Do nor sa chcm out in a schcduic to your b. D o nor even say chcm out laud. Instead, alk policy. judges Love policy, bemuse it m&a them feel Lnpomnr. They un dk policy forever. Keep their minds away Ftom the c r u d w a r d s on which your a p p d turns by alking instead abour chc need m adopt 'a purposive approach" ra whatever area of law you arc discussing. That will effecrivcly foc u rheir ~ atantion whcrc it belongs, and will airnost ccnainly ensure &fur. words are, you will Np 5: Always make a speech far the jury Judgcr are people, roo." Thy don'c like dry, boring legal irgumenrs. Thq hungcr for something to enliven their day. Hclp m e a chis judicial need by making at l a s t one pasionate speech to che jury wery cime you *par before an appellate court. Invite your dicnt and hcP entire h i l y to observe your perbrmance. Inscruct them w f u l l y how to nod enthusilrticaUy, whistle. md cheer in support of your submissions. Endeavour to whip the court inro an emotional fknzy char l a v a them th~tsting for the scalp of your opponent. O v e a u u your arc. Excoriate opposing counrcl. Pound the desk. Sprinkle your argument wirh such phrvcs as 'cravcsry of justice.' *abuseof process.' and ' d o m of b ( ~ r n o n . *F~i~s last phrase should bc addressed. IS. Whik on the wbjm dcoppng fmumr. you might wish to mnrldcr f o h n 6 the lad of same eminent c o u d who gin to o p p u n s c o u n ~ l r diffrrrcnt dnk d rhcir hrmm I d k ? or her. ir docm'r mxmr Aich) rhan chc dm? filed with the eourr. Ths mJrn it impouibk tiw opposin)r counsel to FDUawyout xxgurnent. md heir q a t e d objccriom annor h~l co muse the COUR'S sympathy for rhcm md mtmn~;~y towrd you. 13. Though thee is 1 umng body of opinion ro the cnnuar)s Set the paper 'Machinu Would Be Bmcr.' appcuiq in h n d i v ofAnnwl ~ p n ~ o r &o. njvdirrrl R c a t o * i ~( h r r w i q o/T.ronu Farub ofLPu. CToronru: University of Toronto Press. 1998). 20. Or 'hir' tf your dimc b mile see note Z In the intcrarc of gender nnritiuiry. I have zssumed throughout [ha; dl clicnu are wamcn. 21. Generally rpclking. Solomon was a p r m y good judp. although thrr buincu about curttng the bzby in Nf would pmbrbly not play wrll today wtA rhe oBcc ofThe Children's k w r . Bur rhaci anorher ,tar\ (For the orhcr story. ut Solomon (IGngl in 1 L G q * 3:1628.) wirh a sly wink. to whichever judge you think ha been lcast reccprivc to your submissions.) The more hystcrid your argument, rhc more likely it is rhar onc of h e judges will rhcn ask you a qumion about the weakat aspect of your Then anocher judge will join in. and another. Soon. they all wiU be parading douns of flaws in F u r argument, ach more egregious than rhc next. Press your advanrage. Turn the judgcs inro a d v o u r a for the other sidc. You now have them t u c d y whcrc you w l n c &ern. malung Fun of rhc qucrrion. Look 2s if you are doing everything in your power ro keep from bursting our with taughrcr. Cast at the judger who didn't ask thc qucsrion ;1knowing look thar uys: 'I really fccl for you two; ir musr be rough ro ~ i up r rherc day a&er day md lisrcn to all rhcse-ridiculous qucxrions.' Thcn dance condescendingly A t rhc judge who did ask you the qucscion. blurt out rhc first rhing thar comes into your mind and move on quickly, before he thinks of somcthing else to ask you!' np 6: Never a~tr*rera qrurtion directly or, Tip 7: W a v e r keep your promtseS better still, a t rll Oncc in a while. despite your bcrr &m ro dLcoungc any inurat at all in your upmenc, somc judge is ping to ask you a quadon. Qyacions m a t bc handled wid! greac Runember your objccrivc. Your gml musr be to nun rhu flickring spark of intaesr inw a tirestorm chat d u c c s pour ugumcnr a,asha. T h n c are a number of ways co accomplish chis. One is ro wait untii rhc judgc is balky through htr question. nise your hand disdainfully and say. in a loud. dcu voice. 'Now, look, I srill have a fcw more submiuions ro make and, when I'm good and finished. then 1 wiLl enterrain yaur question." This d m maic enables the judge to dwell upon her qwtion, let it roll m u d in her mind a bit and brood about i t Manwhile, you should nmblc on abow how airrighe your urc is and how foolish it is cven co be armpingabout ir. Scc whccher shc h rhe gall ro rerum ro hcr quescion A c t you are duoue$. Bur be warned. The judge may raiizc char you 2re just trying to calk out tk dock and wiU wait, shukishty," to renew the attack Tune your n a r mwe carcfulty. W h e n you pcrccivc chat the judgc is jua about m fly into a nge. turn to her, smile swctdy and sap 'Oh. yes. did your lrdyship have a question?" Whatever cfie quescion is. avoid a t all costs gmng a dear. strai$cfonnrd answer. S r o n d l . sronovrll, s c o n d l . Some helpful mabods of stonewalling are u follows: d k i n g ovc:. under, and around the question. Thu might be a useful -ion co say somc morc nice wor& abouc policy: uying. "The answer ro chic quarion is found in the evidence of chc witness X"" and proceeding n, ;ad t k c e or four lengrhy passages from the cnnscripr chas have noching whate c r to do wtrh the s u b j m under discussion: rcphrasing the qucsrion in a manner more to your liking ('I garher rhar what your ladyship is r a y asking me ir ...3 and rhen proceeding to m a chu quation.* and. perhaps most cfTccfie of 311. Never. never. m a b a promise char you inrend to kccp. ,& noted." ifa j u d p asks you a particularly incisive qucsrion. say J m l y "That is a very inurcsdng quescion. my lady. I shall anrwa it prcxndy." Then forger dl about it. Ocher promises you may make bur should under no clrcumsunces keep indude the Following: 'There is a case direcdy on paint rhat nnnvers rhat quesrioct. and I will get chc mmc and cinrion aver thc lunch hour": 'The court his noted char I raised f i h c n rcpantt grounds o f appeal in my h u m . bur of course 1do nor pmporc rn itrguc 4of them iii my oral submissions'; .-I will nor weary thc court by repcuing what I nid ar rhe ounct': 'I will just read a shon p a g e from the leading casc on rhir subjuf;" and 'I have ady a brief reply." - 22. Bur be a r & L Thcrc is a right way md a wrong r r y o questions. N-r c h rhe ~tight wry: see 7ip 6. wirh 23. Sec nore 22. Didni I 1.41you? 24. M y guar is chat many of you chink I m d 4 chis word u p but I diin'r. 1 got st eut of Rpsrj In-nand h u m . and it's r red ward. see T k Nrw .Yhrrw Ox@ L&rh Dicriamry (Oxford:~ r d R ~ n u 1993). . vol. 2. p. 2814 (bewen 'huki and 'rhuky7. 25. Chiwicncu whom h e trial judgt exprculy disbclimd and w h e Conclusion I hopc that you viII find rhese rips help1511in signi6canrly lowcrins your barring average in the Gurt ofApp4. If rhcy do. con- sole yourself by runembering that winning kn'r everything." Thk concluder my remarks. Evcn if you find rhcm of no assisunce whawever, I hopc you will be rclrsurcd hy my promise char I will never write on this subjccr again." 27. Those of p u who are kaping tnck will note char I harc swicchd gendm as ehls poinr buc. having rcgaad to the conrur (stupid q t b r ~ . tiom), it s c u d chc plicic (bins m do: 28. Wc'x donc chis a l r c d y (=Tip 6). Wcrrni you pyint, ctcenrionJ 29. Rcdm u m imprunt dull. Be pidcd by the aphorism 'Ruduny. &ch a full man* (Bacon. Fnncir tyr. CyWtn. 1624). (Thsr is an irwppropriau aphorism rn L gender-wtuirivc papcr (rcc nwc 2). bur t h t i Bwoni fault. not rninc.) Tq to m d 11 lcut fwe pwgraphr ir,,m your hrnun and 6vc p a p From your mchoritiu on wry appeal Prncnd pu arc appuring before a coun whorc rncmbcn dnn't kntw how to t d . Btook no i n m p i o n . I f a judge cries to stop ynu. put c-ur Enget down ar thc point whcce you were inrunrpced. &re rnenrisnti!. rr rhe oandcr. and rhcn continue =.ding u if nochins had h~ppr.n,rl. 30. 1 dirlyce mth Krmu Rocknc. who said (r~rherunkindly. in my v i ~ v ) . 'Shnv me a pod and gracioru loxr and 1% &howp u a hilurc(Rockc. Knutr Rcmuk to Wiwnrin Duknhll Coach Walrcr Munwell. 1216).But thrn =pin. he J o nid " W n rhsr onc ior the Cippcr.' m d p u 111 remember what hqpcncd to thc y y w h t ~~*IJVTLI h6 Cipp in the movie (fiutr J?orhcAK-,4mrrirrn. Warncr Rrcn Pinurn. 1940. B&W: % ! %in.). cvidmce h e unedy teiccrcd. 26. Bur remember: thc answer should hm nothing m do with the origid qu~tion. Tha A~VOCLCCS' Saelecy Journal I A u p x 1000