The Real Costs of an Appeal: Preparation

Fort Worth, Texas – Peter Smythe © 2019

Fort Worth, Texas – Peter Smythe © 2019

One of the first questions (if not the primary question) that I am asked about appeals is about the cost involved. And very often I respond by saying that appeals, as with other things in law, are very expensive. The expense does not derive from filing fees, transcript fees, or any other fees, but the preparation needed to skillfully pursue the appeal. A lawyer, no matter how smart he is, must master the case and that takes a lot of time. Below are some quotes from some famous lawyers about the advocates' need to prepare his case:

[P]roper preparation is the be all and end all of trial success. Louis Nizer, My Life in Court 10 (1963).

The better prepared a lawyer is, the more likely the attorney is going to get to the heart of the matter. Hon. Paul Turner, Oral Argument and the Judson Welliver Society, 14 Cal. Litig. 16, 18 (No. 1, 2001).

Effective argument requires careful preparation. Among other things, the lawyer should completely review that part of the record bearing on the appeal, reread the key cases, and index the evidence (transcript and exhibits) for ready reference during argument. The old adage for success applies to appellate as well as trial advocacy: 99 percent preparation and 1 percent inspiration. Hon. Myron H. Bright, The Ten Commandments of Oral Argument, 67 ABA J. 1136, 1137 (1981).

I am never easy now when I am handling a case until I have bounded it north, bounded it south, and bounded it west. Abraham Lincoln (as quoted by Francis Wellman, Day in Court: Or, the Subtle Arts of Great Advocates 39 (1910)).

[S]et aside twice as much time as you judge will be necessary for the preparation of the argument. H. Graham Morison, Oral Argument of Appeals, 10 Wash. & Lee L. Rev. 1, 4 (1953).

The effective oral advocate first prepares for the conversation at oral argument by thoroughly learning the record. No case is decided without reference to the facts, and absolute mastery of the facts is essential to every legal issue on which the case may turn. Catherine Valerio Barrad, Successful Oral Arguments Do Not Involve Any Arguing, S.F. Daily J., 4 Aug 2004, at 5.