“Beguile the time and feed your knowledge
With viewing of the town.”
The secret to success as an appellate practitioner has a lot in common with the secret to success as a playwright: know your audience. This is especially true as you prepare for oral argument.
In Tennessee, you will find out who the potential judges on your panel are several weeks before oral argument. Use some of your prep time to-find out as much about your panel as you can.
One of the best ways to do this is to look for opinions they have written in previous appeals. If a judge on the panel wrote an opinion relevant to the subject matter of your appeal, know it, and know how to use it. The opinion a judge authored in a previous case can provide you with a roadmap for leading the court down your preferred path of adjudication. Keep in mind that judges don’t generally like to be acknowledged specifically as authors because opinions are issued on behalf of the court. For instance, avoid saying, “This is like the Holmes case that you authored, Judge Watson.” Instead, saying something like “The Holmes case provides a helpful framework for this matter...” can help show how precedent from the very judge(s) you appear before resolves your case favorably. Of course, be prepared to handle the opposite suggestion as well. If Judge Watson authored a relevant case that is not, on the surface, helpful for you, find a way to bring up and distinguish the case. This way, you are using your knowledge of the judge’s jurisprudential history to help shape how they process the facts of your case.
Also don’t forget your broader knowledge of our legal system: it constrains intermediate appellate judges to be conservative by nature. They want to affirm if they can. If you are the appellant, accept this, and frame your appeal to make it appear as if they have no other choice but to alter the trial court’s ruling. Try to show how more than just your client will be negatively affected by an adverse ruling by referring to others who would be harmed unless the ruling goes your client’s way. Are other people similarly situated? Will this cause even more appeals? Appellate judges tend to be reluctant to rule in a way that will confuse litigants or inadvertently cause more appeals.
If you find yourself in the Tennessee Supreme Court, your knowledge of the bench becomes even more important. At that level, almost every case is taken for a specific reason, and the Justices reveal their perceptions of the law in their opinions. Understand the background and general legal philosophies of the Justices as evidenced by their opinions, and, in particular, be prepared for discussion of policy implications. What is the public policy or jurisprudential mandate that supports the rule or statute in question, and how does your side’s position best fulfill those obligations?
As in the theatre, so too in the courtroom: knowing your audience is growing your audience.
