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Appellate Maxims

November 2021


This month marks Colorado Lawyer’s 50th year in print. To reflect on how much has changed—and how much has stayed the same—we’re looking back at some of our most memorable articles. We kick off our throwback series with a 1997 article featuring Andy Low’s beloved antihero Tim Flegleman. We find Tim at a Halloween party discussing appellate maxims with Professor Thurgood Stevens. We think you’ll agree that Professor Stevens’s sage advice hasn’t aged a bit. Click here to see all the Throwback articles. 

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I had been slugging it out with a team of lawyers from Tolliver & Rice for more than six months now. Tolliver & Rice was a small, aggressive litigation firm with an amazing list of Fortune 500 clients. I represented Great Divide, Inc., a small software firm in Boulder that had developed an application that allowed users to navigate easier and quicker around that cumbersome operating system that everyone used and nobody liked. My client’s application, called “Cosmic,” was selling as fast as Great Divide could ship it out. The company looked like it had it made until it was sued by the giant software mega-firm, MicroWare, for copyright infringement. MicroWare retained Tolliver & Rice, and I had been caught up in a relentless war of depositions, documents, and deadlines ever since.

When the invitation arrived for the Tolliver firm’s Halloween costume party, I almost chucked it into the trash. But then it occurred to me that I deserved some free food and adult beverages, with my archenemies paying the bill. I rented a set of black robes and went as a judge.

Tolliver & Rice had renovated a mansion just east of downtown Denver. Although I had been in their offices for too many depositions, I had never been beyond the large conference room just off the reception area. As I wandered around the firm’s sumptuous offices, I was reluctantly impressed. The library was furnished with mahogany bookcases and worktables. Comfortable reading chairs set on oriental rugs were scattered in nooks and corners. Each lawyer’s office was decorated in a theme of the occupant’s choosing. One was all glass and chrome, the next was wood and leather, and another was cool tones of pale blue and green with indirect lighting.

I quickly found that my costume idea had not been entirely unique. At least six other guests were outfitted as judges. One of them actually was a judge. There was the usual assortment of pirates, ghosts, princesses, and toreadors. My personal favorite was an over-sized pickle, with green mesh over the eye and mouth holes.

I suddenly found myself face-to-face with Tim Flegleman, who was outfitted, appropriately enough, as a clown. He was talking to Thurgood Stevens, who taught appellate practice at the law school. Stevens was something of an absent-minded professor, and he had forgotten to rent a costume until it was too late, so he simply wore one of his regular suits and came as an absent-minded professor.

“I think I’m finally learning something about appeals, professor,” Flegleman was saying. “I won my last appeal, without any advice from you or Susan Victor.”

“Well done, my boy,” Stevens said in his most avuncular style. “What did you learn from the experience?”

“Well,” Flegleman said, “I learned that short and simple can beat long and complicated. I represented the appellee, which helped, but my brief was only fourteen pages long and made only a few simple points that I thought were dispositive. My opponent’s opening brief was the full thirty pages, making six separate points on appeal. It had twenty-two footnotes, many of them long and confusing. I didn’t find it persuasive at all.”

Stevens was beaming. “Very good, Tim! I give a lecture to my class every year on appellate maxims, and that’s one of them: ‘simple is persuasive.’ In fact, I’m giving my annual lecture on maxims this coming Tuesday.” Stevens waggled his oversized eyebrows and peered at Flegleman. “Would you like to come?”

“Sure, professor, I would love to,” Flegleman said enthusiastically.

“Good,” Stevens said with satisfaction. “Two o’clock on Tuesday afternoon. I’m doing the lecture a little differently this year. I’m presenting the maxims as a list of sure-fire ways to lose an appeal.”

I next saw Flegleman a week later at my favorite lunch spot, the Courthouse Steps. He was rapidly consuming an overstuffed pastrami sandwich, while he studied an untidy pile of notes and briefs. Since this was Flegleman’s usual method of preparing for an afternoon hearing, I decided not to take much of his time. Still, I couldn’t resist asking: “How was Professor Stevens’ lecture, Tim?”

Flegleman’s mouth was full of pastrami, and he waved his hands helplessly until he managed to swallow. “Great. Terrific. Here are my notes,” he said, thrusting at me several sheets of lined paper covered with Flegleman’s messy handwriting. “Busy now—return them to me tomorrow,” he concluded with a wave.

Curious, I took his notes back to the office and read them carefully. Here is what they said:

Professor Stevens’ List of Ways to Lose an Appeal

1. Pay no attention to the standard of review. Select issues for appeal that will be reviewed on the utmost deference or clearly erroneous standards.

2. Challenge a jury verdict by claiming lack of evidence to support the verdict.

3. Raise issues that were not adequately preserved for appeal.

4. Raise more than four major points on appeal. Double credit for raising more than eight points.

5. Write the statement of issues presented as a list of vague, generalized questions, with no details linking the issue to the case (i.e., “Did the district court err in denying plaintiff’s motion for a directed verdict?”).

6. Write the statement of issues presented with so many facts and so much argument that no judge would ever understand them or accept them as genuine descriptions of the issues.

7. Write the statement of facts as a disorganized jumble of unrelated facts. Don’t, under any circumstances, use the statement of facts to tell a simple, compelling story that shows why your client deserves to win the appeal.

8. Don’t provide record citations after every sentence or at least after every paragraph.1

9. Exaggerate the facts beyond what the record will reasonably support.

10. Include material in the statement of facts that is true but cannot be supported by the record on appeal. Double credit for attaching to the brief a document that is not part of the record.

11. Include extensive material in the statement of facts that has no apparent relevance to the issues in the appeal. Double credit if the irrelevant material consists of complaints about opposing counsel’s conduct before or during trial. Triple credit if the irrelevant material consists of a discovery dispute that was not raised in the trial court.

12. Consistently use the passive voice throughout the brief.

13. Misspell as many words as possible.

14. Don’t check citations to legal authorities. Double credit for omitting an affirmance or certiorari denied by the Colorado or U.S. Supreme Court. Triple credit for omitting a reversal.

15. Cite cases without giving the “pinpoint” reference to the particular page of the reporter.

16. Use lengthy string citations. Double credit for string citations with no parenthetical explanations of case holdings. Triple credit for string citations supporting uncontested points of black-letter law.

17. Misrepresent the holdings of cases. Double credit if the misrepresentation is deliberate, based on the assumption that appellate judges and their clerks won’t bother to read the cases.

18. As an alternative to the last point, quote at great length from the cases, based on the assumption that appellate judges and their clerks won’t bother to read them.

19. Repeat your main points numerous times throughout the brief, just to be sure the judges don’t miss them.

20. Don’t include a summary of argument in your brief.

21. Include at least twenty footnotes in the brief. Double credit if at least one page of the brief contains three or fewer lines of text, with the remainder of the page taken up by footnotes. Triple credit if any of the footnotes complain about opposing counsel’s conduct before or during trial, or explain discovery disputes not raised in the trial court.

22. Use plenty of underlining for emphasis—at least one word in each paragraph. Double credit for randomly using both italics and underlining for emphasis. Triple credit for using bold face, italics and underlining in the same brief.

23. Don’t tell the appellate court whether you want affirmance, reversal and dismissal; reversal and new trial; or some other form of relief.

24. Attack the character of the trial judge and opposing counsel. Double credit if the attack is phrased in sarcastic or hyperbolic terms.

25. Make a habit of moving for sanctions on the ground that your opponent’s position is frivolous and groundless.

26. If you represent the appellee, always file and pursue a cross-appeal on the ground that the best defense is a good offense.

27. At oral argument, make excuses for not knowing the record on the ground that you were not trial counsel.

28. Read your oral argument. Do not make eye contact with the judges. Double credit if you are so tied to your prepared argument that you respond to a judge’s question by saying you will get to that subject in a minute.2

29. Do not use a moot court to prepare for oral argument. Do not anticipate any of the court’s probable questions.

I returned Flegleman’s notes the next day. But I had my secretary transcribe Professor Stevens’ list, and I keep it in one of my desk drawers. I read it over each time before I start work on a new appeal.


Notes

1. There is one important exception to the usual rule that each sentence, or at least each paragraph, of the statement of facts must be supported by a citation to the record. Briefs supporting and opposing petitions for certiorari in the Colorado Supreme Court do not require record citations in the statement of facts.

2. See Burtzos, “Common Sense Rules for Oral Argument,” 26 Colo. Law. 71 (Sept. 1997), which contains a good discussion of the guidelines for an effective oral argument.