Spencer Farris, The Levison Group
It was an obsidian and tumultuous night in the Levison Towers. The city lights broke through the translucent (or perhaps dirty) glass on the 23rd floor and cast trapezoidal patterns on the outdated and pace worn carpet.
Forgive me Gentle Reader, if my prose seems more stilted than usual. My writing lately has been for appellate court judges. Rather than thinking on my feet, like a trial lawyer, I have been choosing my words very carefully, like an appellate lawyer. I have opted for four syllable words when one syllable is more my style. For this English major, that means more J. Alfred Prufrock and less Man from Nantucket.
I currently have the ignominious distinction of a pending matter in each of the three appellate courts in my state. Except for the state Supreme Court, I am ubiquitous. Sorry. I meant everywhere.
“Appeal” comes from the Gaelic French word for “loser.” Loosely translated, of course. I have been in the Courts of Appeals in the past and have made law on occasion. Not always good law, but I have made law nonetheless. Never before have I given all three appellate courts the opportunity to confirm my loserdom simultaneously. How did I get here? Simply put, I lost. Three times.
At the trial court level I represent the plaintiff against defendants. In the appellate courts we dress up to be “appellant” and “respondent.” On top of this, I have violated the first rule of appellate advocacy — be the respondent.
No one likes to lose. Even confirmed masochists hope to win occasionally. The stark reality of trial practice is that all trial lawyers lose sometimes. Appeals are meant to undo the losses which we don’t think we deserved. It is the Hail Mary pass after the jury says “Nevermore.”
It is a common misconception, at least among my clients, that every loss should be appealed. On the contrary. Some cases go to trial because one side needs 12 strangers to tell them the truth they didn’t want to hear. At the end of these cases the trial lawyer has to tell his client that the fat lady doesn’t do curtain calls.
I don’t pretend to know how an appeal “really” works. I have been in trial more than 100 times but have had barely a dozen appeals. An appeals court judge reads the cold transcript, stripped of emotion and inflection. It is the difference between watching a movie and reading a script. I have no idea if they break for snacks.
My challenge in briefing an appeal is to be both right and interesting. The first step is to reread the trial transcript. I usually wind up smacking my forehead at some point. I’m thankful that most of my days are not recorded word for word. I say some really stupid stuff.
When the briefs are submitted, we appear in front of the panel of appellate court judges for oral argument. The term “argument” is misleading. The lawyers try to memorize the transcript from days of trial and the law from years of cases. Few have enough will left to argue. The judges pepper the lawyers with questions. Like good trial lawyers, appellate judges don’t ask questions to which they don’t already know the answer.
After argument we wait for the opinion. Appellate opinions are rarely an interesting read. Unless they’re about my case, or support something that I want to do, that is.
I am thrilled when an appellate court opinion appeals to the poet in me. Several appellate court opinions have been written as poetry. One of my favorite recent opinions was Wolff vs. New Hampshire Department of Corrections, which began:
No fan I am
Of the egg at hand.
Just like no ham
On the kosher plan.
This egg will rot
I kid you not.
And stink it can
This egg at hand.
Perhaps my favorite appellate verse comes from Fisher vs. Lowe, a car wreck case:
We thought that we would never see
A suit to compensate a tree.
A suit whose claim in tort is prest
Upon a mangled tree’s behest;
A tree whose battered trunk was prest
Against a Chevy’s crumpled crest;
A tree that faces each new day
With bark and limb in disarray;
A tree that may forever bear
A lasting need for tender care.
Flora lovers though we three,
We must uphold the court’s decree.
I don’t hope for poetry from any appellate court. Either they pronounce my case dead, or they will give my client another shot and we will try her case all over again. I have no idea which is better. But I secretly hope for the verse.
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Under Analysis is a nationally syndicated column of the Levison Group. Spencer Farris is the founding partner of The S.E. Farris Law Firm in St. Louis, Missouri. He keeps all his law in a bucket. Comments or criticisms about this column may be sent to this newspaper or directly to the Levison Group via e-mail at comments@levisongroup.com.
© 2012 Under Analysis L.L.C.
