I had my “eureka” moment about appellate advocacy when I was still a law student. With too few credits to even apply for the Milwaukee District Attorney’s “prosecutor clinic,” I still made an appointment to meet with a deputy DA to see if there was some way I could still volunteer and be useful.
I was stashed aside in a room with a table, lots of books and stacks of papers to wait for the meeting, but as I waited my eye was drawn to a slip opinion sitting on the table. I started to read, of course. The case, as I recall, had something to do with how much Spanish language interpretation was due to a defendant at a particular point in the process. I never got to the end of the opinion, so I don’t know how it turned out.
But I remember feeling the light turn on in my head, recognizing in an instant that this was an area of the law where, if you believed passionately in something and gave it your all in the higher courts, win or lose, your words and your efforts had a resonance beyond just a single case.
Of course, at that time I don’t think I even realized that there was a difference between “published” and “unpublished” opinions. Too late now, the fuse was lit!
It’s been thirteen years since I graduated from Marquette Law School, and nearly all of those have been spend as an Assistant District Attorney in Sheboygan, Wisconsin. It’s a part-time position, which precludes being an “intake attorney” responsible for the day-in day-out flood of case referrals from various law enforcement agencies in the county. However, among the myriad miscellaneous back-up things I do, I gravitated toward handling most of the appeals that the DA’s office was authorized to do. (Felonies and state cases in the state Supreme Court naturally flow to the Attorney General’s office.)
And so, with roughly four dozen appeals and five oral arguments before the Wisconsin Supreme Court behind me, you could say that I’ve comfortably found my “happy place” in the law.
And in that vein, here are a few things I like to keep in mind whenever I’m working on an appeal. The nuts-and-bolts (and there are many) of form and brief length and contents and filing deadlines and certifications and…everything else…are all out there to be found in the statutes and even in the “Guide to Appellate Procedure for the Self-Represented” on the Wisconsin Courts website.
But still, it helps to remember that…
There’s a big time differential between filing papers in an “appeal of right” at the end of a case and in a “permissive appeal” somewhere in the middle. The clock runs out much faster in a permissive appeal, so keep a close eye on the calendar.
Always give it your best shot in a brief to the Court of Appeals. You never know when your case may get kicked up to the state Supreme Court straight from the trial court, and you might not get another chance to make it better!
Get an early start on an appeal if you have the time and you know that it’s coming. Really, are there going to be any new issues that you haven’t argued about in the trial court? You know what they are, so start lining your ducks in a row while the first notices are going back and forth.
Longer does not mean “better”! If you can make a point in one sentence instead of three, use one.
You don’t have to agree with the other side as to what the fundamental issue is. If your opponent thinks that the standards of “probable cause” govern a particular situation but you believe that “reasonable suspicion” is the standard to use, say so. Don’t let yourself get boxed in by somebody else’s framework if you think the argument should be settled differently.
And if you get to the Supreme Court!!!
Don’t waste the Court’s time groveling! You can always do that if you meet one of the Justices in an elevator or a coffee shop. When you’re standing at that podium, you’ve got just thirty minutes to make your case. Your job is to explain to the Justices what you think they should do about the law, and why they should do it.
Practice, practice, practice! You may look deranged to other drivers if you’re rehearsing your introduction or working your way through an explanation of legal theory, but…it helps to say stuff out loud, over and over. I actually still wrestle with a pathological fear of public speaking, so I literally make up index cards with potential issues and answers and study them until I have them committed to memory. Then, if my brain shuts down with fear, I’ll still have some things memorized. And, for every Supreme Court case I’ve had, I’ve made what I call a “war book.” It’s a big, tabbed binder with all the briefs, all the statutes, the lower court decision, and my “wish list” speech of all the things I’d like to say if I get the time. Sometimes it’s helpful to be able to look something up in the heat of battle.
Listen to the other side. You are not a robot sitting there to give a pre-programmed speech. Pay close attention to the points the other attorney brings up in oral argument. And in particular, listen to what the Justices are asking your opponent. If he or she doesn’t have a good answer to one of those questions, when it’s your turn, maybe you do.
Speak truth to power! You have not been invited to the Supreme Court chambers to be a wallflower. Sometimes you will be lobbed a softball question, sometimes you will be fiercely put to the test to explain why your view of the law should prevail. Either way, own that square foot of ground that you are standing on, and remember, the case isn’t about YOU. At this stage of the game, it’s all about THE LAW.
Mary T. Wagner, MU Law ’99, is an Assistant District Attorney in Sheboygan, Wisconsin. A former journalist, she is also the author of three award-winning books, “Running with Stilettos,” “Heck on Heels” and “Fabulous in Flats.” She wrote about her evolution from soccer mom/journalist to prosecuting attorney for MORE.com in My First State Supreme Court Argument.