Oregon State Bar Bulletin — AUGUST 2003

Managing Your Practice
A review of 'Winning On Appeal'

By Jim Westwood

Winning on Appeal: Better Briefs and Oral Argument, Second Edition, by Ruggero J. Aldisert. National Institute for Trial Advocacy, 2003 (Paperback, 473 pages, $59.95).

Too often we lawyers buy a highly touted legal practice book thinking it has to be part of our library, only to find that it sits on the shelf as unused as that Vegematic in the back of the kitchen closet. The newly released Second Edition of Winning on Appeal will come off your shelf regularly, not just when you have an appeal, but also every time you need to do any sort of persuasive writing or argument. This book is a winner.

Trial and appellate lawyers use many of the same skills. Writing and arguing persuasively are as critical to winning a summary judgment or dismissal motion as they are to winning in an appellate court, and Judge Aldisert’s publisher may be missing a great marketing angle: Winning on Appeal is for every litigator, not just the appellate types. Where else would a trial lawyer be reminded that judges wake up when they see an important proposition supported by both a case citation (with jump cite, please) and a short pinpoint quote from the case? A busy trial lawyer who has overlooked it can find that refresher and many others in Winning on Appeal. You should not be thinking, though, that a book so useful to trial practitioners will fail to engage or instruct a full time appellate lawyer. The wealth of detail and the unbending insistence on logical thinking that Judge Aldisert brings to his book guarantee that every reader, with whatever level of experience or expertise, will gain new insights — even with a randomly-chosen reading in a leisure moment.

Ruggero Aldisert is a senior judge and former Chief Judge of the Third Circuit Court of Appeals, with a longstanding reputation as a thorough, clear thinking jurist. It’s plain that Winning on Appeal is not ghost written. The writing style is methodical and detailed but never dull. What comes through is the personality of a legal practitioner of the old school who still believes that quality work, although difficult to produce, is cost effective. It wins more often. Judge Aldisert might disagree with the Holmesian view that the life of the law is not logic but experience. He knows classical logic, and he demonstrates time and again how a small logical lapse in a written brief can send a well-begun argument off into irrelevance. To him, a well written brief is the heart of an appeal.

Indeed, more than half of this large book is devoted to the creation of the brief. An obligatory introductory chapter in that section discusses brief formatting (mainly from the federal side). At least one rule citation there is out of date, but the author advises in any event that a brief writer should consult the relevant court rules early and often. The valuable chapters follow, with far more than mere 'nuts and bolts' advice. How do you choose the issues for a brief? An entire chapter tells how best to do it, and here Judge Aldisert introduces a valuable feature he will utilize several times again: More than 20 state and federal appellate court judges tell briefly here how they prefer to see issues identified. With 35 years on the appellate bench, Judge Aldisert has a huge network of friends in judicial and appellate practitioner ranks – people who now provide quotable guidance throughout his book, in one or a few sentences, on everything from perfecting the written argument to pet peeves, from vignettes on being persuasive to a 'compendium of advice' on what makes a brief effective.

Oral argument receives shorter treatment, and that is appropriate where the author has told us that oral argument seldom turns a losing appeal into a winner. Nonetheless, the chapters on preparation and delivery of oral argument are full of valuable pointers. Judge Aldisert says at the start of his work that '[j]udicial fish are explaining to lawyer anglers how to catch them' in his book. He credits the legendary John W. Davis for that metaphor, which he plays beautifully throughout his work. In an artful departure from that theme at the end of the book, he provides a chapter on 'How Top-Flight Appellate Lawyers Prepare' for oral argument. Eight distinguished practitioners, including former Solicitor General Seth Waxman, write a few paragraphs or pages on the subject. Reading the professional confessions of so many fine lawyers in one place is fascinating and very instructive.

Ruggero Aldisert sits often by designation on Ninth Circuit panels. This Third Circuit judge lives and works in Santa Barbara, Calif. I found out the reason for that and learned more about the ex-Marine’s personal and judicial life in the recent '20 Questions' interview of the judge on Howard Bashman’s blogspot, How Appealing (http://appellateblog.blogspot.com). But back to this review of Judge Aldisert’s book. I’ll give up the bulky review galley for my own copy of the bound edition, now that it’s been released. I have found nothing else like Winning on Appeal. It’s a book well worth having – and using.

Jim Westwood of Stoel Rives in Portland concentrates his practice in state and federal appellate courts. Among the more than 150 appeals he has handled are important decisions in insurance, banking, legal ethics, tort and punitive damages law. He is past chair of the OSB Appellate Practice Section, a present member of the executive committee of the Constitutional Law Section and a fellow of the American Academy of Appellate Lawyers.

© 2003 Jim Westwood

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