Charles Fried is, by any measure, a pre-eminent legal scholar and American jurist. He served as an Associate Justice of the Massachusetts Supreme Judicial Court from 1995-1999. Prior to that, he was Solicitor General of the United States from 1985-1989. He has argued numerous major cases in state and federal appellate courts, including Daubert v. Merrell Dow Pharmaceuticals, in which the United States Supreme Court established the standards for the use of expert and scientific evidence in federal courts. He has also been a member of the faculty at Harvard Law since 1961, and is the author of nine books and more than 30 journal articles.
Professor Fried recently spoke to Massachusetts Appellate Blog about appellate practice and his advice for Massachusetts appellate lawyers. In this, the first of two posts recounting that discussion, Fried offers helpful practice points for oral argument and brief writing. In the next post, we will share some examples he provided from his practice as an appellate lawyer, and an interesting anecdote on how the Supreme Judicial Court changed its pre-argument procedures during his tenure on the Court.
- Many appellate lawyers can’t help but continue talking long past the time they have something important to say. Get to the heart of it, Fried advises. He considers it a point of pride not to make it to the yellow light (indicating that time is almost up).
- Find an image or an analogy that encapsulates the legal issue presented to the court, so that it will remain in the minds of the justices when they think about the case later on.
- Remember that it is hard to win a case at oral argument. More often, you are trying not to lose what you have won in your briefing.
- Do not evade questions at oral argument. The justices will see that evasiveness, become irritated, and assume you do not have a satisfactory answer to the question posed.
- Many lawyers are so consumed by the injustices that occurred in the trial court that they cannot appreciate the strength of the case on appeal. Fried refers to this as “Acquired Conviction Syndrome.” The result is that they focus the appellate briefing on a dozen small points, rather than the few issues that stand out. That is lethal, and is one reason it is often a good idea to hire appellate counsel.
- Get the bad news out yourself. Whether in brief writing or at oral argument, appellate judges are smart and will see the weaknesses in your case. Don’t miss the opportunity to address those weaknesses and put them in the best possible light. If you don’t, the justices, or worse, your opponent, will.