Is there anything appellate lawyers can learn from the recent high-profile telephonic oral argument held in the Ninth Circuit in Washington v. Trump? A Defense Research Institute Appellate Advocacy Committee teleconference recently endeavored to answer that question. The speakers were Mary Massaron and Jerry Ganzfried, and the moderator was Keith Whitson. Here are a few takeaways I gleaned from their presentation:

  • Appellate lawyers can sometimes find themselves in a bind when trying to seek expedited appellate relief. If you wait too long to file, it becomes more difficult to make the case that there is an emergency. But you need time to prepare high-quality papers. Burning the midnight oil may be the only solution here.
  • When you are questioned on an issue that is weaker for your side, one good strategy is to answer the question directly and move on quickly. One of the speakers quoted Justice Scalia as encouraging advocates to yield the indefensible ostentatiously.
  • When you have a procedural argument (such as whether the trial court’s order is appealable) that logically should be addressed first, but you anticipate the court may not be interested in dwelling on at oral argument, you may want to note that the issue is fully addressed in your brief and then state that unless the court has questions on that you will move on to your next point.
  • Appellate courts are often focused on which issues must be decided and how narrowly they might be able to write an opinion. Be prepared to offer alternative approaches that might soften the blow for your client if you do not win on all issues. You may need to clear those with your client in advance of the argument.
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Photo of Wystan Ackerman Wystan Ackerman

Wystan Ackerman is a partner in Robinson+Cole’s Appellate Team. Wystan is admitted to practice in Massachusetts, Connecticut, and New York, the U.S. Supreme Court and various federal courts of appeals. He has briefed and argued appeals in the Massachusetts Supreme Judicial Court and…

Wystan Ackerman is a partner in Robinson+Cole’s Appellate Team. Wystan is admitted to practice in Massachusetts, Connecticut, and New York, the U.S. Supreme Court and various federal courts of appeals. He has briefed and argued appeals in the Massachusetts Supreme Judicial Court and Appeals Court, has successfully petitioned the SJC for further appellate review, and has also litigated interlocutory appeals before the Single Justice of the Appeals Court. He takes pride in writing briefs that are succinct and compelling, and preparing thoroughly for oral arguments. Wystan is often asked by his colleagues to serve as a “moot court” judge in practice arguments.

Wystan has also handled matters in the Supreme Court of the United States. He successfully petitioned the Supreme Court to grant certiorari in Standard Fire Insurance Company v. Knowles, 133 S. Ct. 1345 (2013), in which the Court unanimously rejected a plaintiff’s attempt to evade federal jurisdiction by stipulating that the amount sought would not exceed the $5 million threshold under the Class Action Fairness Act.

Wystan’s appellate practice is national in scope. Many of his appeals have involved class action and insurance cases. He has served as appellate counsel in the U.S. Courts of Appeals for the First, Second, Third, Fourth, Fifth, Eighth and Eleventh Circuits, as well as in various state appellate and supreme courts. Wystan also regularly files amicus curiae (friend of the court) briefs in federal and state appellate courts. He currently chairs the Appellate Section of the Federation of Defense and Corporate Counsel (FDCC). Wystan has been listed as a Second Circuit Litigation Star in Benchmark Appellate (2013) and is listed in Benchmark Litigation (2013-2015).

Wystan received his B.A., summa cum laude, in Government and Legal Studies from Bowdoin College, where he was a member of Phi Beta Kappa. Wystan received his J.D. from Columbia Law School, where he was a James Kent Scholar and a member of the Columbia Law Review.