Reflections on Appellate Courts: An Appellate Advocate's Thoughts for Judges

I. INTRODUCTION When writing an article to an audience of appellate judges, appellate advocate Moses Lasky spoke of the delicate nature of the task: Unlike the teacher of law, the poor lawyer occupies no Olympian coign of vantage outside the fray. Nor is he clothed in the armor of the black judicial robe to protect him from the consequences of being in the fray. (1) Lasky explained that "only an enormous respect for the function of the courts and, by and large, for their efforts" allowed him to turn a critical eye on them. (2) He also acknowledged that "if there are deficiencies in the bench and its opinions, they may well stem from bad briefs and poor advocacy." (3) As was Lasky, here am I, ready to engage in a candid conversation about what advocates seek from the bench. I hope that the conversation will prove thought-provoking, perhaps enlightening, and that we will all leave with a renewed commitment to the collaboration necessary to make the appellate process function better. As an appellate advocate, what I seek on behalf of my clients is nothing more and nothing less than principled decisionmaking that leads to a just result. Judge Posner offered a definition of a principled decision that is worth quoting: "A decision is principled if the ground of the decision can be stated truthfully in a form the judge could publicly avow without inviting strong condemnation by professional opinion." (4) He illustrated his statement by observing that [i]f the only "principle" that explained a judge's decisions in tax cases was that he thought tax collection communistic or satanic, his tax decisions would be unprincipled, because he would never admit publicly--not in this society, not today--what his ground of decision was. (5) Judge Posner elaborated on his notion of principled decisions, explaining that "[t]o be a principled adjudicator involves more than just acknowledging the true ground of decision; it also requires being consistent within and across cases." (6) If appellate judges do not engage in principled decisionmaking, then the appellate advocate's presentation of an appeal becomes meaningless, for the issues selected and the arguments presented by the advocate are, or should be, grounded on a respect for the law. The advocate seeks to persuade the appellate court that professional principles of decisionmaking that are accepted in the jurisdiction support the advocate's position. When a decision is actually based on some other ground, unknowable in advance and inconsistent from case to case, the entire process takes on an Alice-in-Wonderland quality. No appellate advocate wants to participate in such a process--and I am sure that judges would also disavow it. Like any experienced advocate, however, I have seen appellate decisions that do not satisfy this standard. I have read opinions in which the court omitted discussion of a significant issue, overlooked critical facts, or distorted the discussion of past precedent. But I have seen many more in which the appellate court carefully and thoughtfully considered the issues presented and decided the outcome on the basis of the facts and law. I regularly read opinions that are lucid, logical, and occasionally, even elegant. And I have had clients say to me, "I had almost lost faith in the system until I received this decision." For advocates and judges alike, this is something to strive for and something that, in my optimistic fashion, I believe is possible. In any event, I thought it might be useful to catalogue more concretely some aspects of what I seek from the appellate judges before whom I appear. * First, and most basic, I hope to receive a decision that reflects a careful and accurate understanding of the facts in the record. * Second, I read the opinion to see whether it discusses the issues raised by the parties. * Third, I hope the opinion analyzes the existing law on the subject, and then sets forth the court's reasoning in a logical, principled, and persuasive way. …