Appellate Lawyers: How Does Argumentation Work? Forum

[Chambers]

To All appellate lawyers (and anyone else with relevant knowledge),

I am considering a career in appellate law, and am wondering how argumentation works, both in briefs and oral arguments. I'm interested in any descriptions you can offer, but especially answers to the following questions:

1. Is appellate argumentation about applying a basic argumentation concept to specific cases in a category (i.e. you argue basically the same way for every free speech case), or crafting a creative argument each time using logic and relevant laws?

2. How much leeway do you have to choose how you will argue a case? In other words, do you usually need to adopt a certain argumentation pattern to be successful, or can you successfully argue based on your own interpretation of the law?

Thanks for Reading!

[lymenheimer]

Have you looked through briefs and listened to the oral arguments for any appellate case? SCOTUS's website has all the documents and audio for the cases brought before them. Might get an idea browsing and listening through the matters in practice.

[Chambers]

Good idea...yes, I've read a few SCOTUS cases, but no recent ones. I'll have to consider that.

[GoneSouth]

I'm assuming you're a 0L. It's pretty much impossible to do a "career" in appellate law unless you're coming from a SCOTUS or maybe a circuit clerkship. For the most part, you have to start out doing a lot of things other than appellate. I would advise you not to walk around telling people you want to be an appellate lawyer because you will sound like you don't understand the legal world.

[Chambers]

@GoneSouth: Thanks for the advice. I'm actually not even 0L; I have yet to start undergraduate school.

[jdmonkey]

You can be an appellate lawyer right after law school. I know people that are doing this sort of work for state AG offices, DA offices, and PD offices. I personally would do trial work first, because I feel like it gives you better insight to spot the appealable issues when you are reading the trial transcript. I worked on a criminal appellate case during clinic, but I feel that if I didn't have continuous access to the professor I would have missed a lot of the issues. But that's just me.

[Chambers]

^Thanks. I can see how trial law might provide a good basis (and connections) to turn to appellate law later.

[A. Nony Mouse]

Re: the questions in the OP - you're creative within a fixed universe you can't control/change. You're not going to argue every free speech case exactly the same way because the facts are always going to be different. But you are going to be arguing within a framework of established law about free speech. The creativity comes in arguing for why, under that established law, the facts as seen in your case mean that you win. So in terms of arguing based on your own interpretation of the law - you do this, but only to an extent. If the law says that a public sidewalk is a public forum and speech in that arena can only be limited under circumstances x, y, and z, you're not going to win by arguing that under your interpretation of the law, a public sidewalk isn't actually a public forum. However, if your case involves an escalator, you could argue that an escalator is/isn't a public forum because it is/isn't like a public sidewalk, or you could argue something like although the court didn't address circumstance q, it actually is/isn't just like x, y, z, so should/shouldn't justify limiting speech.

[Chambers]

@ANM: Thanks for the helpful information! If I'm understanding correctly: certain questions (in your example, the elevator) are up for debate/are based on interpretation and require creative argument; other questions (in your example, the public sidewalk) are not feasibly debatable, and lawyers must assume them to be successful.

[silenttimer]

If this is not flame (which is suspect at this point), my advise is to go to undergrad and law school, then the answers to the questions that you just asked will become very apparent to you. Also, if you do want to become an appellant lawyer, I'd recommend working on improving your writing immediately.

[Chambers]

@silenttimer: I apologize if anything I said sounded like an insult. I had absolutely no intention of doing so. I'm sure I could improve my writing...although I really don't know why you pointed it out.

[A. Nony Mouse]

@ANM: Thanks for the helpful information! If I'm understanding correctly: certain questions (in your example, the elevator) are up for debate/are based on interpretation and require creative argument; other questions (in your example, the public sidewalk) are not feasibly debatable, and lawyers must assume them to be successful.

Yeah, pretty much.

But I agree that you're kind of putting the cart before the horse.

[JGMotorsport]

To All Appellate Lawyers (and anyone else with relevant knowledge),

I am considering a career in appellate law, and am wondering how argumentation works, both in briefs and oral arguments. I'm interested in any descriptions you can offer, but especially answers to the following questions:

1. Is appellate argumentation about applying a basic argumentation concept to specific cases in a category (i.e. you argue basically the same way for every free speech case), or crafting a creative argument each time using logic and relevant laws?

2. How much leeway do you have to choose how you will argue a case? In other words, do you usually need to adopt a certain argumentation pattern to be successful, or can you successfully argue based on your own interpretation of the law?

Thanks for Reading!

First and foremost, lawyers generally aren't divided into appellate lawyers and non appellate lawyers. Usually it's litigators, transactional, tax, regulatory and maybe a few others.

Good litigators might get appellate work, but your bread and butter will be in state trial courts sitting motions and arguing.

Litigators are often divided by subject i.e. Tort Lawyers, Commercial Litigators, Environmental, etc. any of these can be appealed. If you're good you'll be the one appealing, if not you'll associate with a firm with more resources.

As for arguments: read some appellate case law, usually you are working within the confines of precedent, that is what is a binding authority (state COA or Circuits) and what do they say about each topic? Is a sidewalk a public forum? Sure, but is your demonstration also infringing on the rights of others to use the public sidewalks? Well, let's see what the court says and make some analogies.