This article focuses on what not to do if you wish to prevail in
an appellate matter. Part of this is, unfortunately, the painful
lessons learned from experience. Other observations here are
derived from listening to appellate judges discussing their
observations about what irks them most. I write in the sincere hope
that your own appellate efforts will be more successful by avoiding
the following.
Wait Till the Last Minute
Appellate writing is a distilled product. Because everything in
the brief (the preliminary statement, what is included in the
record and how the record is organized, the framing of the issue,
the statement of facts, etc.) all need to be harmonized to
reinforce your argument on appeal; the process simply takes time.
Framing the issue, which is perhaps the most important decision
you'll make, is a painful process because you have to
"murder your darlings" and look coldly at what precisely
is the issue you want the appellate panel to decide. One
