By Cory Bilton
Last fall, I had the good fortune to meet John Vail. John’s legal career has covered a lot of territory. He has managed community legal services programs, testified before Congress on federal procedure, and lectured at esteemed law schools (such as my alma mater, George Washington University). But for most of this century, John’s practice has focused on motions, appeals, and constitutional issues. For many trial lawyers, appeals are a rare opportunity. John was kind enough to allow me to ask him a few questions about appeals, his career, and advice he has for local trial lawyers.
You weren’t always an appellate lawyer, right? How did you get involved in appellate practice?
I wasn’t always an appellate lawyer, but I always was involved in motions practice. I think that was an outgrowth, simply, of an interest in the principles of the law.
In what ways do you think appellate practice differs from trial practice?
Trial practice is the really hard stuff, generating facts, often from people who are very reluctant to reveal them. Both practices require weaving the best possible narrative from those facts. Appellate practice delves into intricacies and subtleties that do not arise in the normal trial. The life of an appellate practitioner is much more predictable than that of a trial lawyer, in much the same way that the life of a dermatologist, who seldom is on call, is different from the life of an ER doc.
What are three things trial lawyers can do to at the trial stage to prepare a case for an eventual appeal?
At the beginning of a case, think through to the end: know what the jury instruction will say and do your best to prove every element necessary to satisfy it.
Preserve all errors. The failure to object at a critical moment, the failure to renew a motion to new trial can doom an otherwise attractive appeal.
When you know a case will involve difficult legal issues, engage an appellate lawyer at the trial level. That can help you keep a verdict you worked hard to get.
When should a trial lawyer consider involving a lawyer that focuses on appellate practice?
See above for a partial answer. A trial lawyer should ask the questions: how long will it take me to do this appeal myself and how much will the appellate lawyer cost? I have had numerous trial lawyers tell me that in certain cases they will do better hiring me and spending their time trying cases.
What are the traits of a convincing appellate brief?
Clarity and brevity are the most important. I try to respect the story my opponent has told but to demonstrate that my own narrative is more compelling. I always take special care to explicate my weakest and strongest points and to address the weakest and strongest points of the other side. Most often everyone knows what these are.
Once you’ve written a brief, how do you prepare for oral arguments?
Arduously. It is the rare case for which I do not seek a moot court, with a bench comprised, hopefully, of persons familiar with the court I will be addressing.
How much do you tailor your arguments to the individual justices that will be reading or hearing your arguments?
The first thing an appellate lawyer learns is how to count: you need four votes to win on a seven person court. I always search opinions the relevant judges have written on the topic I am addressing. If it is possible to harmonize the judge’s thoughts with the result I want, I try to harmonize. I try to focus my attention on judges I think I can persuade.
You also help lawyers with motions at the trial level, right? Is your approach to motions practice different from your approach to appeals?
My approach to motions practice is similar to my approach to appeals. Facts often are more uncertain at a motions argument. Indeed, one of the things you often argue about is why you need and are entitled to facts the other side doesn’t want to disclose. And, typically, you have an audience of one. It is critical to have read the decisionmaker’s related opinions, and/or to have consulted with other lawyers who have appeared before the judge.
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