Appellate Advocacy

Trial practice is fought with broadswords—appellate practice uses a stiletto. In an appellate matter, counsel needs to focus on several critical issues.

First, what is the real deep issue on appeal? Too often even the best trial lawyers are ineffective as appellate counsel because in an appeal you need to hone the argument to one or two issues. "Murdering your darlings" (E.B. White) is difficult. As a National Institute for Trial Advocacy (NITA) instructor, I have always taught that if everything is important, nothing is important. 

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Second, appellate counsel needs to be attuned to how the Appellate Division or Court of Appeal perceives the issue. The intermediate appellate courts are not a mere stepping stone to the Court of Appeals in New York or the Supreme Court in New Jersey—in most cases their decision is final. You need counsel who follows the trends in appellate law because the law is always heading in a direction.    

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The Supreme Court of New Jersey and the Court of Appeals in New York are the highest courts in those states. Those courts do not typically grant certiorari to fix small errors, rather when they accept a case the intent is to set policy. At that level, you need counsel who appreciates each judge's perspective on the legal issue.    

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I was fortunate to have served as a judicial law clerk for the Honorable Chief Judge Donald P. Lay (Eighth Circuit, United States Court of Appeals). I have also learned a great deal from my father, who served for two decades on the Supreme Court of New Jersey.   

In addition to standing on the shoulders of giants, I have learned through my own experience, in appellate practice in New Jersey, New York, Nevada, Florida, and Ohio.    

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Being an elected member of the American Law Institute (ALI) has been both a privilege and a tremendous opportunity for me to participate in active discussions on the development of the law. The ALI drafts and publishes the Restatement of the Law.

I firmly believe that by listening to the debates between lawyers, judges, and academics on how the law should evolve, I have learned as much by participating in the ALI as I did in law school.