Hi, I’m Winter Park, Florida, attorney Eric Lanigan. I want to talk today about the most important aspect of a Florida Appeals case and that is about being very concise. It’s always interesting to me that while appellate briefs should be direct and to the point, how often appellate briefs are rambling and imprecise.
When you read the typical appellate briefs, of which there are three parts:
- The initial brief by the appellant, the answer brief by the appellee and then the final reply brief again by the appellant, that all of those things may be put together in excess of 100 pages.
- Yet when the court makes a decision, if you get a court opinion that is longer than four or five pages, it’s extremely rare.
- You think, well, all of these arguments took hundred or more pages to make, yet the final decision is only four or five pages. Which tells me that there was an awful lot of just junk and fluff in those appellate briefs that didn’t need to be there.
So one of the things that we always try to do is to say we need to be concise and direct and to the point because that’s what the judge is trying to be when he’s writing his opinion. The other is to make sure that you pick the right battles to fight.
Unlike the trial court where there’s maybe more the tendency to get everything out there because you never know what the jury is going to try to hang their hat on. In an appellate court you really need to evaluate and prioritize the various issues as from my best shot to this is a waste of time for me.
Lead With the Argument You Know You Can Win
You’ve got to be able to cut out those legal arguments where you know you just don’t have a very solid position and go with the arguments you’ve got where you know 
you can win and leave the others out.
Because any appellate judge will tell you that one of the most annoying things in the world is a lawyer trying to turn a sow’s ear into a silk purse by manipulating and misquoting and obviously misinterpreting various cases to try to turn an obvious losing argument into a winner. You gain no points by doing that.
Go with the arguments that you feel the best about and have the courage just to cut the others out.
The same sort of thing when you’re filing an answer brief: you have to be able to do the same thing and one of the most important things I think in an answer brief is not to be controlled by what the appellant said in their brief to where the answer brief is nothing more than attacking every little thing that they said in their initial brief. But to make your own argument and not allow that initial brief to define and control all that you’ll say in your answer brief.
One thing that’s similar to a trial in the appellate process, is that in a trial the plaintiff makes their first closing argument, then the defendant gives their closing argument, and then the plaintiff gets to come back up and have the final word.
Well the same thing on the appellate level. The appellant gets the final word in their reply brief.
Be VERY Careful What You Say in the Answer Brief
You Only Have One Chance to Say it Correctly
So one of the things that we stress very vehemently is that in your answer brief, be very careful what you say because the appellant is going to be answering that brief and you’re not going to have any chance to respond to that.
So you need to be extremely careful that you don’t spin or distort the facts, that you don’t try to get away with using a case or distorting what the case stands for or the ruling of a case that you’re using in your argument because it’s one of the dumbest things that I see people do. They’ll use a case for some sort of legal argument then you go to read the case and it doesn’t say what they tried to argue.
I often think to myself, do you really think that I’m so dumb that I’m not going to read the cases that you cited to see if they really do say what you claimed. And don’t you realize that if they don’t say what you claim, how you’ve exposed yourself to a relentless attack in the final brief?
But it’s just amazing how that happens over and over and over again. So in being an advocate on the appellate level, there are some things which are similar to what you use as a trial attorney and as a trial advocate.
You’ll Lose if You Do What You Did at Trial Level
Appeals Take a Different Tact Than Trials
But you’ve got to recognize that if you do the same thing that you did at trial, you’ll probably lose just like you did at trial. So you’ve got to approach it differently and you’ve got to understand the different emphasis that exists and apply the correct principles of appellate argument.
And if you do that the judges will appreciate that, they appreciate the candor, they appreciate that if there’s an argument that the other side makes and you candidly believe well, you know what, the trial judge really was wrong on this point.
Every appellate judge will tell you, “just admit it.”
On this point we have to concede error. We have to concede that what the trial judge did was not correct. And you gain a tremendous amount of respect as to the other arguments that you make if you’re willing to concede those arguments from your perspective you’re just going to lose.
