Charles_Fried_at_Harvard(2)

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.

Oral Argument

  • 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.

Brief Writing

  • 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.

Photography by Matthew W. Hutchins, some rights reserved.

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Photo of Jonathan Small Jonathan Small

Jonathan Small is a member of the firm’s Litigation Section and Insurance + Reinsurance Group. His complex commercial litigation practice regularly brings him into Massachusetts trial and appellate courts on behalf of insurance companies, real estate developers, and other businesses. His interest in…

Jonathan Small is a member of the firm’s Litigation Section and Insurance + Reinsurance Group. His complex commercial litigation practice regularly brings him into Massachusetts trial and appellate courts on behalf of insurance companies, real estate developers, and other businesses. His interest in appellate practice began in law school when, as a student attorney at Georgetown Law’s Institute for Public Representation, he wrote an amicus curiae brief on behalf of the AARP in U.S. Supreme Court case Warner-Lambert v. Kent, 128 S. Ct. 1168 (2008).

Jonathan has defended clients against bad faith and unfair trade practice claims brought under state consumer protection statutes, including the Massachusetts Consumer Protection Act (Chapter 93A). He has successfully argued dispositive motions in federal and state trial courts, and defended those rulings on appeal. He has also defended clients in class action lawsuits and defeated attempts at class certification at the trial and appellate levels.

Jonathan grew up in the greater Boston area in Easton, Massachusetts. He attended College of the Holy Cross in Worcester, Massachusetts, where he earned his undergraduate degree and majored in philosophy. After graduating from Holy Cross, Jonathan served as an AmeriCorps VISTA supporting low income communities in Miami-Dade County, Florida. He then matriculated at Georgetown University Law Center in Washington, DC, where he was a staff editor of the Georgetown Journal on Poverty Law and Policy, competed in mock trial as a member of the Barristers’ Council, was named a Global Law Scholars Program fellow, and served as a research assistant to Professor Charles R. Lawrence, III. Following law school, Jonathan clerked for the Honorable Lynn Leibovitz of the District of Columbia Superior Court. After the clerkship, he worked at Goulston & Storrs in Boston before moving to Connecticut with his family and joining Robinson+Cole.