APPELLATE ADVOCACY - LL47102

This is an advanced seminar in Appellate Advocacy open to second and third year students. It is a full year course.  The key component of the course is the opportunity to improve your advocacy skills by taking principal responsibility for the brief on appeal in a real case, subject to my individual tutorial oversight, as well as the oversight of the record attorney. You may also make the oral argument before the Appeals Court (and/or a mock argument in class). You will have real responsibility. Needless to say, your best effort is expected.

Each case is used as a problem for class discussion as it progresses from intake through research, analysis, brief writing, and oral argument. You will also meet with the teacher and record attorney for conferences as your case progresses. Working on an appellate brief of your own, and assisting classmates on their cases, hones the analytical skills taught in the classroom. You must marshal the facts, present reasoned argument, and argue legal issues from the perspective of their practical impact on real people in real cases. The focus of the course is on advocacy, with primary emphasis on the art of advocacy in briefs and oral arguments. The ability to persuade is one of the hallmarks of a lawyer, who must be able to write and speak effectively. An effective lawyer must be an articulate advocate at all times.

The academic component of the course is substantial. In addition to analyzing the substantive and procedural issues raised by the cases in the course, we treat the subject of Appellate Practice in depth and cover all aspects of handling an appeal, including the crucial steps that must be taken in the trial court to preserve issues for appeal. We use problem cases as well as assigned readings. Throughout the course, we constantly probe legal process issues. We also discuss current issues facing the appellate courts and appellate attorneys.

We do study oral argument skills and you will have a chance to get on your feet. Class presentations take place while the briefs are being prepared. All students have a chance to argue their case in class or in front of a mock panel; some will get to argue in court.

Guest appearances by experienced members of the bench and bar help to demonstrate the dedication, commitment, hard work, and rigorous standards necessary to turn out top quality appellate work. Over the years, these guests have included Justice Spina of the Supreme Judicial Court, Chief Justice Armstrong and Justices Cohen and Kass from the Appeals Court, Joan Lukey, a Senior Litigation Partner at Hale and Dorr and past President of the Boston Bar Association (as well as best speaker on BC’s National Championship Moot Court Team), Bar Counsel Dan Crane, Appeals Division Chiefs from District Attorney’s offices, criminal defense attorneys, such as Tom Dwyer, another past BBA president, Willie Davis, Chairman of the Committee For Public Counsel Services, and Ed Ryan, former President of the Massachusetts Bar Association, record attorneys on cases in the course, law professors, former students who clerked in appellate courts, and others.

CASE SELECTION

Success obviously depends on available cases. Most students have had their own case to work on; some have worked jointly on a case, a good learning tool in itself. There has always been at least one major case per year, usually more. Cases vary, of course, but on the whole it has been quite rare for a case not to work out as a good teaching vehicle. I screen all cases to determine their suitability for the course and have been pleased with the mix of cases over the years. The people we work with understand the educational goals of the course and have been cooperative in offering worthwhile cases.

We get criminal cases from the offices of several district attorneys. In recent years, most of these prosecution cases have come from Middlesex, Suffolk, and Bristol counties. We usually have at least one first-degree murder case per year and generally assign more than one student to these. Others are Superior Court felony trials or District Court trials with some interesting feature. Ideally, we prefer a case with a transcript and a sufficiency of the evidence argument, combined with a separate legal issue, such as a search and seizure issue, or an evidentiary ruling, or a claim of improper closing argument, so students have a chance to make different types of arguments. So long as a good job was done on the brief, the DA’s have been fantastic about allowing students to make the oral argument.

We also get criminal cases involving appeals by defendants. (These come from different counties than the prosecution cases.) Sometimes these come into the course through the Committee for Public Counsel Services and sometimes from the private bar. Willie Davis has been a guest lecturer for many years and always has some interesting case to bring into the course. Last year, Ed Ryan (then President of the Massachusetts Bar Association) brought in the Worcester Cold Storage fire case (the two homeless persons accused of manslaughter in the death of six firefighters). Two students participated in preparation of the brief in the Supreme Judicial Court. Mike Traft, an experienced criminal practitioner, can usually be counted on for an interesting case. Thus, we gain an insight into criminal appeals from both sides.

Although appropriate civil cases are usually harder to find, we generally have a sufficient number to demonstrate the differences between criminal and civil appeals. In addition to cases from the private bar, clinical programs and pro bono law reform efforts have also been sources of civil cases. Law reform cases brought by clinics or organizations lend themselves to analysis of strategic concerns in such institutional litigation. Moreover, the Supreme Judicial Court has been requesting amicus briefs more frequently and I think that will become a source of cases in the future. There is always a risk that civil cases may settle on appeal (in which event, if the student is well into the case, the student just completes the brief and does a mock argument).

The enormous increase in appellate caseloads has created an ample supply of cases for the course. Moreover, due to heavy caseloads and limited staff resources, institutional litigants have been even more receptive to participating in the course. Thus, suitable cases for the course are expected to remain available.

AN ILLUSTRATIVE YEAR

This past year’s class is an example of the variety of cases available. We filed a brief for the grandparents in one of the cases challenging the constitutionality of the Massachusetts Grandparent Visitation statute. The students who worked on the brief did a mock argument in class and attended the actual argument in the Supreme Judicial court. After prevailing on procedural grounds, we then filed an amicus brief in the other case when the Supreme Judicial Court asked for additional briefing on equal protection issues.

One student worked on an appeal for the Children’s Law Center involving privacy rights of high school students. Another student worked on a case from a medium-sized firm involved an application for direct appellate review in an employment discrimination case. The Supreme Judicial Court took the case and has invited amicus briefs. Another student worked on an issue of first impression under the strict liability provision of the state building code; after her brief was filed in the Appeals Court, the Supreme Judicial Court took the case, sua sponte, for direct appellate review. A student worked with Willie Davis on a habeas appeal in the First Circuit.

Several students wrote briefs on behalf of the Commonwealth for the District Attorney’s Offices in Middlesex, Suffolk, and Bristol counties. The cases involved, among other things, murder, rape, sexual assault, drugs, civil rights violations, violation of restraining order, search and seizure, and due process in sentencing.

AN ILLUSTRATIVE EXPERIENCE

The major cases lend excitement, but the more routine appeals are frequently even better for learning purposes. The student enjoys more responsibility for the case. And the application of law to the facts, as we all know, is the bread and butter of appellate practice, so the lessons learned in these cases are particularly valuable.

Phil Catanzano, who graduated in 2002, is a good example of this. He took the course in his second year and wrote the brief for the Commonwealth in an appeal from a conviction in the Lowell District Court for assault and battery on a police officer (among other charges). The facts had a certain spice to them, a possible lawsuit against the City lurked in the wings, and the Appellant had forcefully challenged the closing argument of the prosecutor as well as certain trial rulings. But there was nothing earth shattering about the case.

Phil wrote a good brief and the case came up for argument this past year while he was a third year student. He came before this year’s class with the ADA on the case to present a practice argument. Even though he had been a finalist in the Grimes second year moot court competition, we all worked him over pretty well and he realized he needed to know the record better and had to work out problems with some of his arguments. He did a second mock argument in front of a panel of Assistant District Attorneys at their office.

On the appointed day, Phil argued the case before a panel of the Appeals Court. The ADA reported that he did an outstanding job. The presiding justice complimented him from the bench. Another panel member later told me that it was the best argument he heard all day. The third panel member was Kent Smith, who authored the Massachusetts Practice volumes on criminal procedure, and who sits as a recall justice after many years on the Appeals Court. He went down the hall to the chambers of a colleague and raved over the student argument he had just heard, saying "I gave him an A."

Even though the court eventually handed down only an unpublished opinion, Phil won a case that could have been lost. All in all, a pretty good experience for his first appearance before an appellate court. Phil credits his experience with giving him a much deeper insight into the art of advocacy. The lessons Phil learned will stay with him throughout his career, and no judge before whom he appears will ever have reason to complain about the quality of his briefs and oral arguments. There is no guarantee that everyone will have as successful an experience, but we certainly try and students generally have enjoyed their experiences in the course.

BENEFITS OF THE COURSE

Law schools are constantly searching for worthwhile upper-level writing opportunities for the curriculum. The preparation of an appellate brief that meets rigorous professional standards has always been one of the most demanding writing tasks in a lawyer’s life. And for sheer intellectual excitement, it is hard to beat a first-rate oral argument in a modern appellate court.

The course satisfies the new ABA upper-level writing requirement. The ABA has also encouraged greater attention to the subject of Appellate Practice in the law school curriculum. Despite moot court programs and advances in the quality of first year writing and advocacy programs, judges continue to report dissatisfaction with the quality of the briefs and oral arguments in their courts.

The collateral pro bono benefits, to defendants and to overburdened prosecutor’s offices, as well as to clinics and law reform efforts, are likewise substantial.

Although court deadlines must be met, you will have enough time to do a first rate job. Compared to the usual trial by fire, there are advantages to learning how to handle an appeal in the supportive atmosphere of a small seminar and with the guidance of the teacher as well as the record attorney responsible for the case. We try to enjoy ourselves as well.