When people ask me about the most helpful tip I can give for writing a brief and appearing in front of the Wisconsin Supreme Court, my answer is always “preparation, preparation, preparation.” The most effective appellate lawyers have spent an incredible amount of time knowing and understanding their cases and the applicable and relevant law in the area. They have “mooted” their oral arguments a number of times in front of different lawyers or retired judges. Of course, appellate books and training programs tell you to do that as well.
I believe it is perhaps more helpful for me to write about a significant mistake I have seen very well prepared lawyers make. The biggest error by counsel appearing before the Court is to get too close to the case. They know how they want the case to turn out (although occasionally we had an attorney appear who could not exactly explain what he or she believed the mandate line should say if there is a reversal). We all understand that counsel’s objective (rightfully so) is to win it for the client.
However, some attorneys so strongly advocate for what they characterize as the righteous position of their clients, that they forget the role of the Court is to clarify, affirm, distinguish, create, redo, or change the law on one or more specific issues. The Court took the case to do just that. It is a big challenge for the justices to write an opinion that clearly, concisely describes what they believe is the appropriate law while not also creating unintended complications in other kinds of cases.
A good lawyer, in his or her brief and in preparation for the oral argument, has stepped back from the case and specifically is able to articulate what “the ripple” effect of any given decision might be. The attorney should be able to describe what the whole opinion should (and should not say). I can tell you from personal experience that the justices will listen to tapes of oral arguments several times over in hopes that there is a question and answer on the impact of a particular decision on an unrelated area of law. Nothing is more frustrating than to listen to the tape, to hear a justice ask the question, and for someone to have interrupted without the lawyer having answered. Unfortunately that does often happen.
That is why it is also critical to address those kinds of issues in the submitted briefs. A party’s counsel should serve as a tour guide for the justices, helping them understand the benefits of his or her position and the risks of the opposing party’s position. That ability is a sign of a highly skilled and prepared appellate attorney.