Appellate advocacy is just as much a speciality of law as is, for example, contracts or bankruptcy, and engenders many skills unique from those involved in trial litigation. In particular, trial attorneys should be deft at eliciting evidence through discovery, examining witnesses and making spontaneous tactical decisions before a court or jury. By contrast, appellate counsel must be accomplished at persuasive writing, legal research, mastering the factual record on appeal and developing a solid comprehension of pertinent legal principles, subtle distinctions and emerging legal trends. Appeals lawyers also must examine and advance creative analogies and policy issues that shape and test the frontiers of the law. Further, the skill set and cool, detached temperament of the appellate attorney needed to persuade the appellate tribunal varies greatly from the emotive nature of the subjective trial lawyer endeavoring to win over a jury.

Paramount among the skills necessary for successful appellate advocacy are brief writing and oral argument, the importance of which cannot be overstated given that an ability to communicate effectively is the bedrock of an attorney's attaining competence in the law. One appellate tribunal has noted that "an appellate court's judicially neutral review of the record is no substitute for the careful, partisan scrutiny of a zealous advocate; that it is appellate counsel's unique role to discover and highlight possible error and present it both orally and in writing to the appellate court" (Hamilton v. State, 573 So. 2d 109, 110-111 [1991]).

Brief Writing
"[A]n ability to write clearly has become the most important requisite for an American appellate lawyer", says our Nation's Chief Jurist, and "brief writing can be called a combination of art and science" (Remarks of Chief Justice William Rehnquist, U.S. Supreme Court, to the ABA Appellate Practice Institute, May 29, 1998, reprinted from the Journal of Appellate Practice and Process, Vol 1, No. 1, 3-4 [Winter 1999]). Because appeals generally are decided on the briefs, an inability to write persuasively can be fatal to a party's position. As New York's Chief Judge has cogently explained, "[t]he brief a judge can follow easily and have confidence in is the one the judge returns to when deciding how to vote the case or compose the opinion. That's the brief you want to write" (Hon. Judith S. Kaye, Effective Brief Writing, New York Appellate Practice, at 215 [NYSBA 1995]).

It follows, therefore, that an attorney "should put the kind of effort and skill into writing a brief that a poet or novelist puts into his art" (Pannill, Appeals: The Classic Guide, 25 Litigation 6, 7 [Winter 1999]). Yet, "brief writing has an unusual distinction in the law: More good lawyers do it badly than just about any other aspect of professional practice" (Rubin, Better Appellate Brief Writing, In Brief, The Practical Litigator, No. 2, March 1997). "The purpose of a brief * * * is to persuade. Unfortunately, too many briefs fail to deliver" (Hon. Roger Miner, Professional Responsibility in Appellate Practice: A View From the Bench, 19 Pace L. Rev 323, 334 [1999]). Because "practice makes perfect", however, appellate practitioners are adept at crafting articulate and persuasive appellate briefs. Thus, since quality counts, "[c]onsider hiring an appellate specialist as counsel to write briefs and argue appeals" (Hon. M.D. Denman, Appellate Division, 4th Dept., Appellate Practice in New York [NYSBA 1989]).

Oral Argument
Strong oral argument skills are likewise key to successful appellate advocacy. "Oral argument is normally an essential part of the appellate process. It is a medium of communication which for many appellate counsel and many judges is superior to written expression. It provides a fluid and rapidly moving method of getting at essential issues." (ABA, Standard Relating to Appellate Courts, § 3.35 [1977]).

The primary goals of oral argument are to focus the appellate justices on the true issues on appeal and effectively field their questions in a manner that advances the client's position; goals that demand the utmost familiarity with the record and an ability to anticipate inquiries. As U.S. Supreme Court Justice William Brennan has observed, "oral argument is the absolutely indispensable ingredient of appellate advocacy", providing a "Socratic dialogue between Justice and counsel" (Harvard Law School, Occasional Pamphlet No. 9, pp. 22, 23 [1967]). Thus, the talents needed for proper oral advocacy wholly differ from the oratory talents required to argue before a trial judge or jury. Disfavored by an appellate bench are emotional arguments or the practice of reading from a prepared script of the argument. Also, given the very limited time constraints for oral argument, appellate attorneys employ their aptitude for presenting only their best or key arguments to the court, and even knowing when to sit down.

Appellate Counsel as Litigation Strategist
Co-counseling with litigation strategists and appellate advocates at the outset of a case for assisting trial counsel and monitoring the trial is also an important and wise consideration. As Judge Lawrence Pierce of the U.S. Court of Appeals has observed:

Too often, attorneys forget that the potential for success on appeal begins at the pre-trial preparation stage, continues during the trial phase (and perhaps post-trial phase) and generally concludes with the submission of one's brief and oral argument on appeal. If appellate and trial counsel are one and the same person, then it is essential to view what transpires at the trial through a prism of appellate considerations. If they are separate counsel, then * * * it may be wise for appellate counsel to be associated with trial counsel both before and perhaps even during the trial to see to it that a proper record is made in the event that an appeal becomes necessary. That this course of action can have merit seems borne out by the fact that, more often then one would expect, cases are lost on appeal due to the failure of counsel at the trial level to make a proper record, or to raise arguments or objections, or to submit requests to charge for the judge's consideration in jury trials. Developing a proper record can also be important in a case in which a pre-trial dispositive motion has been made -- e.g., a motion that seeks dismissal of a complaint for failure to state a cause of action or seeks a grant of summary judgment. Often, it is a wise course to have appellate counsel peruse such pre-trial motion papers before they are submitted or before a response is filed.

(Hon. Lawrence W. Pierce, U.S. Court of Appeals, 2nd Circuit, Appellate Advocacy: Some Reflections From the Bench, 61 Fordham L. Rev. 829, 834-835 [1993]).