Appellate Adventures, Chapter 13, "How Do I Present the Outline of Argument?"

OUR STORY SO FAR.
Rising star trial lawyer Flash Feinberg had just lost a case. After a court trial, Judge Buller (aka "The Mad Bull") had just announced his decision -- a defense verdict, against Flash's client.

His client was Debbie Dropshot, a tennis pro at the Topspin Tennis Club. Topspin had hired Debbie to teach tennis to Topspin's members. On her own time, Debbie also played in professional tournaments, run by the Tennis Association. The Association requires players to submit to periodic drug tests. Recently, right before a tournament, Debbie took a drug test and flunked. The Association banned her from playing. Debbie is challenging that decision, claiming that the test was flawed: it showed "positive" only because Debbie had taken some medication for a sinus ailment.

But once Topspin's board of directors heard that she flunked the test, they fired her. Flash sued Topspin for wrongful termination.

Debbie's three-year contract with Topspin required her to "maintain professional standards and high-quality instruction for Club members." The Bull granted Topspin's motion for summary judgment, ruling that flunking a drug test violated that provision, so there was no "triable issue of fact."

With the guiding hand of Patty Plato (his former law school professor), Flash had weighed the likely costs and benefits of appealing the Bull's ruling -- and decided to go ahead. So he filed his notice of appeal and his designation of record, then drafted an outline of his opening brief. Plato advised him how to draft the procedural facts section of the brief, and then the substantive statement of facts. [See prior Moskovitz On Appeals columns.]

"Now it's time to write the Argument section, Professor. Where do I start?"

"You've already started, Flash. Remember how we began? First thing you did was come up with a theme of injustice. And then you prepared an outline of your legal arguments, so you would know which facts to include in your Statement of Facts: the facts that would support your arguments.

"Now it's time to refine your outline, and then flesh it out in the actual Argument section of your brief."

"What do you mean by 'refine your outline'?" asked Flash.

"Your working outline was just for your benefit. But now you need to prepare an outline of argument that will be seen by the judges. In fact, your outline -- in your Table of Contents -- might well be the very first thing they look for when they pick up your appellant's opening brief, because they want to see what the issues are before they read anything else. It's extremely important to make a good first impression, by wording your issues very carefully."

"So the first issue should be 'Debbie Didn't Do Drugs', right?" asked Flash.

"Not quite, Flash. Let's start with your working outline. You came up with three potential legal arguments for reversal.

• First, the Bull erred in his interpretation of Debbie's contract. You'll argue that the provision requiring Debbie to "maintain professional standards and high-quality instruction for Club members" applied only to misconduct occurring at the Club, and only to misconduct that the quality of her teaching -- neither of which occurred here.

• Second, you'll argue that even if Debbie breached, the breach did not justify termination -- because the breach was not material.

• Third, you had tried to put on an expert showing that the drug test was flawed, but the expert was on vacation in Africa, and Bull erred by refusing to continue the hearing until he returned."

"So how do I write them up"? asked Flash.

Plato explained, "Note that each of these three arguments separately warrants a reversal -- standing on its own. That is, acceptance of each is not dependent on the appellate court buying any of the other major arguments. Therefore, we will call these your major arguments. Use Roman numerals -- I, II and III -- in front of each of these major headings."

"OK," said Flash. "In what order?"

"Usually, it's easiest on the reader if you present them chronologically -- in the same order that they arose at trial. But if the first one that arose is weaker than one of the others, it's better to start with your strongest. Otherwise, the judge will see your weaker argument first -- and assume that the remaining arguments are even weaker."

"What words should I use to present each major argument?"

"Good question, Flash. Many lawyers don't put enough care into this, overlooking the three things the appellate judges would like to see in an outline of argument.

"First, it's usually best to frame each major argument in terms of some specific error the trial court committed at a specific time, rather than some abstract issue of law. Appellate courts reverse trial courts because of something the trial court did, such as deny a motion or overrule an objection to certain evidence. So instead of writing the first major issue as 'I. The Contract Did Not Limit Appellant's Conduct Away From the Club', say (if the record permits) 'I. The Trial Court's Finding That Appellant Breached the Contract Was Based on a Misinterpretation of the Contract.' This immediately tells the appellate judge the precise error you are challenging. And, incidentally, it tells the judge that you have a favorable standard of review -- de novo -- because every judge knows that issues of contract interpretation are reviewed de novo.

"This brings us to the second point: Where it's not obvious, your presentation of the issue should take into account the correct standard of review. So don't write the second major issue as 'II. The Breach, If Any, Was Not Material.' Instead, write, 'II. There Was No Substantial Evidence That The Breach, If Any, Was Material.'

"Third, unless obvious, write your heading to include the notion that the error was prejudicial. Appellate courts reverse only when they find both (1) trial court error, and (2) that the error probably affected the outcome, i.e., it was "prejudicial." So showing error alone isn't enough. (Sometimes, of course, an error is obviously prejudicial -- as where a trial court has granted summary judgment or sustained a demurrer without leave to amend.) So don't write the third major issue as 'III. The Trial Court Erred In Denying Appellant's Request for a Continuance.' Instead, write, 'III. The Trial Court Abused Its Discretion and Committed Prejudicial Error By Denying Appellant's Request for a Continuance.'

"The appellate judge will appreciate these efforts to play on her playing field. Her first impression of you will be: 'This guy is credible, he knows what he is doing, and he knows what I'm looking for. I'd better pay close attention to the rest of his brief.'"

"Thanks, Professor. Any other ideas for the Argument section of my brief?"

"Tune in next time, Flash." 