Post Photo_Quill-400pxWOnce, while at a family gathering, I witnessed my brother tell his four-year-old son, Riley, that, no, he could not watch a video until after he finished eating dinner. Undaunted, Riley jumped up from the table and ran to his mother in the kitchen, “Mom!” he cried. “Dad won’t let me watch Pinocchio!” Immediate appeal from a final judgment.

The parallels between Riley’s pursuit of a higher authority and what I do for a living got me thinking. Clearly, Riley was unhappy and thought his chances would be better with a different decision-maker. Perhaps a more sympathetic ear, one with liberal movie-watching leanings. Alas for Riley, his mom is an experienced jurist and quickly ascertained that the Court of Dad had not erred. Affirmed without opinion.

Was Riley’s reaction so very different than the reaction that most clients have upon hearing that they have lost their case? Probably not. Everyone is looking for a fair shake. A chance to complain. Ever-elusive justice.

So where did our boy Riley go wrong?

First, he didn’t take the time to make a record. If he had peppered Dad with questions of “why” he might have discovered a sub-rationale, the true reasons for the denial. Think how much more effective it would have been for Riley to claim that Dad was incurably biased against movies about little wooden boys. Clearly, the position that the movie could be watched only once the broccoli was eaten had to be pretense; Dad was imposing a condition that could never be satisfied. Such a presentation might have caught Mom’s attention.

Nor does it appear that Riley contemplated whether the grounds for appeal were attractive. Compare Argument A:

Mom! Dad won’t let me watch Pinocchio because he says it contains subliminal messages that I should smite the neighbor’s dog with a broomstick!

with Argument B:

Mom! Dad says I have to eat my veggies before I can watch a movie!!

Which argument would pique your interest?

This is not to say that Riley should have misrepresented the decision below, certainly not. That is an often-pursued, always-fatal appellate tactic. One must disclose the rationale of the decision appealed from, albeit while highlighting its flaws. The point is that if Riley had taken a hard look at the rationale of Dad’s decision he would have realized that there was little chance of Mom finding fault in the logic. This was clearly a discretionary call, one where the court of first resort is given a lot of leeway. There was no sense in Riley taking the issue up unless it implicated a family policy or household rule, preferably one where the reasonable minds of the parents have been known to differ.

Finally, Riley left out the personal touch, the “pathos,” that can bring an appeal to life. Riley did not make his mom “feel his pain,” did not stir in her a nostalgia for Jiminy Cricket, which might have persuaded her to do what he wished.

I have heard that all I need to know I learned in kindergarten; apparently, that is true even when it comes to my chosen profession. We can all learn by Riley’s example. And Riley? Well, it turns out that Mom was just an intermediate court. He went off to the Court of Grandma, the highest of authorities.

Photography by Rachaelvoorhees, some rights reserved.

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Photo of Linda Morkan Linda Morkan

Linda Morkan has dedicated her practice to appellate advocacy for almost 30 years, and has been involved in more than 200 appeals before the appellate courts in Massachusetts, Connecticut, Rhode Island, and New York, as well as the Court of Appeals for the…

Linda Morkan has dedicated her practice to appellate advocacy for almost 30 years, and has been involved in more than 200 appeals before the appellate courts in Massachusetts, Connecticut, Rhode Island, and New York, as well as the Court of Appeals for the First, Second, Fifth, Sixth, Eleventh, and D.C. Circuits. She has only had one outing in the U.S. Supreme Court, but emerged victorious. Connecticut National Bank v. Germain, 503 U.S. 249 (1992).

In 2008, Linda was the first woman in Connecticut inducted into the American Academy of Appellate Lawyers, an honor open only to those who have practiced as an appellate advocate for at least 15 years and possess a reputation of recognized distinction. (Academy membership is limited to 500 members in the United States and is by invitation only.)

For many years, her name has appeared in Best Lawyers in America,  Benchmark Litigation and Benchmark Appellate, and was three times included in the special publication “Top 250 Women Litigators in the United States.”  Linda is AV Rated Preeminent in Martindale-Hubbell in the area of Appellate Practice, and is currently listed in SuperLawyers‘ Top 100 Lawyers in New England and Top 50 Women Lawyers in New England.

Serving in local, regional, and national appellate advocacy groups, Linda just completed a three-year stint as Co-Chair of the Appellate Advocacy Section of the Connecticut Bar Association.  She is also currently a Vice Chair of the Torts and Insurance Practice Section of the ABA, and regularly publishes in state and national publications on topics related to appellate practice and persuasive techniques.

When Linda is not researching, writing, or appearing in court, she can frequently be found at a Bruce Springsteen and the E-Street Band concert. Including the current tour, she has attended almost as many Springsteen shows as she has argued appeals.

Linda is admitted in the First Circuit, but not admitted in the state courts of Massachusetts.