As you’ve probably gathered by now, my job isn’t exactly rocket science. I read some pleadings, read some transcripts, read some statutes, read some cases, and then shout an argument into a dictaphone to be transcribed in 14-point type. In between, I drink lots of coffee.

My colleagues who do “real work” here at the Firm on the Move (TM) sometimes give me a hard time about this. But there are legitimate differences between trial and appellate practice, and the two disciplines require different approaches.

A trial judge is trying to get to the right result in one specific case. He will get there by making fact findings and excluding all of your good evidence discretionary rulings. Over the lifespan of a case, trial lawyers will have numerous opportunities to present their theory of the case to the court. Further, trial courts are bound by precedent; for them, the law is pretty much set. Accordingly, legal argument in a trial court will proceed by analogy, applying and distinguishing existing cases, usually on the facts. Trial judges want to hear about the facts and fairness. They want to know what the law is, not what it should be. And they don’t set policy

Appellate courts set policy:


The Wise Latina has a point. Appellate courts don’t just decide cases one at time; because their decisions are binding on courts and panels of coordinate or lower jurisdiction, they have to formulate rules of law that will work fairly going forward. And at least in theory, they have little room to work with the facts. By the time your case goes up on appeal, the facts are settled. Depending on the result below, the standard of review will essentially dictate that one side or the other will win the fact arguments. A key appellate practice skill is accepting those facts, and working with or around them.

Finally, and perhaps most importantly, a lawyer has a very limited opportunity to convince an appellate judge of her theory of the case. Appellate briefs are subject to strict word and page limits, and oral argument time is strictly limited. Every word counts.

So what does that mean for a practitioner?

  • Know your audience, and tailor your presentation accordingly;
  • Argue facts and fairness in trial court;
  • Argue law and policy in appellate courts;
  • Remember that you have very little time to make your point to an appellate court, so every word counts.

Enough of that. Time for a coffee break.