Judge Fuentes Offers Appellate Practice Tips

Judge Jose Fuentes has often been willing to share his views about what is and is not good appellate practice.  Examples of that were discussed here and here.  At last night’s NJSBA Appellate Practice Committee meeting, Judge Fuentes took questions from committee members and offered a number of practice pointers.  Some have been stated before, by Judge Fuentes or other judges, some were new, but all were valuable.  A sampling of his thoughts follows:

Know the record.  Nothing punctures counsel’s balloon with an Appellate Division panel like being asked a question about the record and not having a clue about the answer or where to find it.  The judges may have ten appeals on their docket on the day that you argue, but you have only one, and you should know your case better than the panel does, Judge Fuentes said.

Answer the question that is asked, when it is asked.  Counsel who say “I’ll get to that later in my outline” run the risk of seeing their oral argument terminated on the spot, as Judge Fuentes recalled seeing occur.

The Preliminary Statement is the most important part of a brief.  Judge Fuentes said that it should act as a guidepost for counsel, a set of parameters within which the brief should stay.  He suggested that if the brief begins to deviate from the Preliminary Statement, it’s likely a good idea to rewrite the Preliminary Statement.

Lengthy briefs are, in general, evidence of bad writing.  And if one moves for leave to exceed the 65-page limit in the Appellate Division, that lawyer is in “big trouble,” Judge Fuentes said.  He compared the two speakers at Gettysburg after the Civil War battle there:  the featured speaker, who went on for two hours, and whose name is now largely lost to all but history buffs, and President Lincoln, whose two-minute speech is known as “the Gettysburg Address.”

Don’t make the Statement of Facts or Statement of Procedural History into a “blow-by-blow” recitation.  Much of the background of a case is unnecessary or even unhelpful, and it can divert the court’s attention from what is really important.

Make it easy for the panel to know what the trial judge ruled.  That is, after all, the subject of the appeal.  Put the trial judge’s opinion and order early in the appendix, and cite and quote it in your brief so the panel doesn’t have to puzzle over what is being appealed.

Charts in briefs can be helpful, illuminating effectively, in a small space, what would take many words to convey.

Finally, identify the standard of review in your brief and at oral argument.  But there is no requirement that the standard of review be placed in a separate section.  Judge Fuentes suggested weaving the standard of review into the argument section of the brief.

Judge Fuentes answered questions until there were no more to be asked.  As in the past, he was very generous with his time, after having finished his “day job” as a Presiding Judge of a Part.  The attendees thanked him with well-deserved applause.


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