Advice on Appeals from Howard Eisenberg

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Category: Legal Practice, Legal Writing, Marquette Law School
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Just like the prospect of being hanged in the morning, there’s nothing like having fourteen people over to Thanksgiving dinner to concentrate the mind.  In my case, it’s also the galvanizing principle to buckle down and clean house.

This year, the task was truly daunting — the family room had become nearly impassible, swamped by pile after pile of paper and other detritus related to serial family emergencies and funerals of the past few years.  And let’s face it, if the laws of physics dictate a that an object in motion tends to remain in motion, the rules of law and gravity at my house dictate that clutter tends to remain in place, and magnetically attracts more of the same.  Exponentially.

Still, the pool table and foosball tables weren’t going to excavate themselves for company, and so I parked the puppy in “doggie day-care” and rolled up my sleeves.  

Much of the “cleaning” involved simply moving assorted stacks and boxes to another room and making more efficient use of vertical placement.  But once in a while curiosity would get the better of me, and I would sit, cross-legged on the floor, to open a mystery portfolio or two with an eye on pitching things that were truly no longer needed.

Out went the collection of memos I had written about civil litigation during my four-month stretch working for an insurance defense firm, my first job out of law school.  Same for the memos I had written while a law student intern at the U.S. Attorney’s office.  Criminal law is such a changing, evolving field that anything I had looked up ten years ago or more would have to be researched from the ground up anyway.

A colorful two-pocket folder sporting a picture of  a red-eyed King Kong dunking a basketball with his index finger caught my eye.  If there were two things I could be counted on for in law school, it was that I wore a lot of “message” T-shirts, and I tended to pick cute folders for my law school classes.  This could be interesting, a trip through time.  As well as carbon-dating my flaws as a housekeeper.  I flipped it open.

There were only a few sheets of paper within, but it was the bright turquoise one that caught my eye.  On one side was an announcement for an “classroom to courtroom” seminar at the law school dating to my last year as a student.  Hoo boy.  But on the other side was a set of handwritten notes, indicating that I’d used the sheet for note-taking some time later.  And as I read, I realized that these were the notes I’d taken listening to Howard Eisenberg talking about appellate arguments.

As cosmic irony would have it, I was scheduled to speak to Melissa Greipp’s Appellate Advocacy class just two days later.  I smiled in gratitude and recognition.  The notes would be coming back to the law school with me.

My first thought was that this was the advice Howard had given me shortly after I graduated in 1999 when I was crafting my first brief to the Wisconsin Supreme Court and gearing up for my first oral argument.  The case was Sheboygan County DH&HS v. Julie A.B.

I had not been out of law school all that long — and been in my job as a prosecutor only nine months — when I drew the assignment of briefing a termination of parental rights case to the Court of Appeals.  We had lost the case in the trial court.  We followed with a loss in the Court of Appeals as well, and my boss gave me the green light to file a Petition for Review with the Wisconsin Supreme Court.

“Overwhelmed” would be too minor a word to describe my state of mind, and I sent an emergency appeal by email to Dean Eisenberg, who had taught my own Appellate Advocacy class.  Did he have any short and pithy advice to offer someone who was going to knock on the door of the highest court in the state?

He responded with a cornucopia of assistance.  His first words, in a quick response to my email, were to think big and not be afraid to argue public policy.  Some time after that, we sat down face to face at the law school and talked about the things that mattered in mounting a successful appeal.  And when the Wisconsin Supreme Court granted the Petition for Review and I was quaking in my boots at the thought of stepping up to the podium for the oral argument, he volunteered to put together a moot court for me at the law school to help me prepare for the big day.  He sat on the panel, of course, along with the professor who, at Howard’s passing soon after, would become the current dean, Joseph Kearney.

I’m pretty sure that the sheet of turquoise paper in the King Kong folder stems from the day Howard Eisenberg and I sat down in person to talk about the finer points of appellate advocacy.  On reflection, there’s an outside chance that I jotted these notes down during the moot court and after, rather than during our brainstorming session.  I will never really know.  But I can still remember the gratitude I felt both for his advice, and for the enthusiasm and generosity of spirit that accompanied it.  I was very happy to bring his words back to the law school nine years later, and share them with a classroom of students who were just beginning a voyage I still find quite thrilling.

And here, for the record, are some of the things I took to heart from Howard Eisenberg when my first state Supreme Court case was hurtling toward its opening curtain.  Take them and use them well!  I’ve followed them religiously in four more cases that made it to the high court.

  • Think big.  The Court granted your Petition for Review for a reason, and it’s not about the individual merits of your case.  It’s to make some statement about the law.  Try to figure out what it is.
  • In the vein of “thinking big,” don’t be afraid to argue public policy.  That can be extremely important.
  • But while you’re arguing public policy, leave the “I think” and “I believe” and “I feel” statements behind you.  Nobody sitting on the bench deciding your case really cares what you think in this situation, they want to hear about what the law requires.
  • Make your case seem as easy to decide as possible.  And argue what will give you your best relief first.
  • Sarcasm is out . . . and attempts at humor are pretty “iffy” too.
  • Think through what the possible holes in your arguments could be, and work this in somehow.  And don’t be afraid to concede what you can’t win.

Mary T. Wagner is an Assistant District Attorney in Sheboygan County, Wisconsin, and the author of “Running with Stilettos: Living a Balanced Life in Dangerous Shoes.”

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2 Responses to “Advice on Appeals from Howard Eisenberg”

  1. Thank you, Mary, for sharing that.

    It hit home at two levels, the first being the more mundane: It was most comforting to realize that we are not the only householders who truly have created an archaeological treasure in our home. Joann and I have been pondering the truth of the expression, “paperless office” for decades, as we nibble at a gargantuan entity.

    More importantly, though, I was moved by your account of gaining support from Dean Eisenberg at an important moment in your career. The existence, and importance, of collegiality is something that too often slips from view and, as I indicate in my following comment, is important across professions

    While my legal training has only been as a litigation paralegal (I never practiced after certification, as writing got in the way), Dean Eisenberg’s advice rings true for other fields, as well. Recently, in the environmental work of one of our member organizations, there was a need for such guidance in preparing to sway a local government board’s decisions about land use. I’m not certain that the board’s collective mind was open to argument at that point, but I do believe that Eisenberg’s advice might well have saved the day, had it been in the collective mind of the petitioning group. On the basis of preliminary discussions to which I was participant observer (collegiality, of a sort), the group was not hearing that its planned main argument was probably its weakest. So, the group would have benefitted from hearing–and understanding–his advice.

    As a writer–and, inevitably a critic of writing–I wonder why so little of our fiction concerning practice of the law fails to acknowledge the positive influence of professionals, like Dean Eisenberg, who do so much to provide a positive ethical foundation to the practice, and of the positive effects of collegial activity among practitioners. Regrettably, that has not been the ethos characterized in most dramatic presentations I have experienced. So, I truly appreciated your account, Mary.

    Thank you.

    Kevin Murphy

  2. Lori Eshleman Says:

    Dear Mary,

    When I began to read this I thought it was Dean Eisenberg “speaking.” I only hesitated when “he” spoke of putting the puppy in doggy day care and sitting cross-legged reading old notes. That I struggled to imagine; I was already wondering if he had kept those notes for what, 25 or more years.

    It was very good reading. I, as you know, do not practice at the elevated level where you trod, but some of the principles do carry over, even into administrative law. I actually won an Appeals Council argument, and benefits for my deathly ill client, by arguing the public policy interest in keeping ovarian cancer victims from living in cars.

    So, great for you, give ‘em some real life scoop on how to make it happen.

    Your friend, Lori

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