Appellate Practice Articles

Elliot Wales

Significant Appellate Litigation

Appellate Practice Articles


Appellate Practice Articles

I have written numerous articles and reviews on federal appellate practice.

For example:

  • In my New York Law Journal review of PLI treatise on federal appellate practice, as to appellate strategy:

“…just be creative, persuasive, literary, scholarly, humorous, philosophical, diligent and brilliant.”

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“…the appellate process is more than just brief writing. It is a world of ideas, creativity, and thought. It involves creating: a theme which has appeal and persuasion.  If one is an appellant, it involves creating a story of injustice so that an appellate panel will feel reversal is deserving. It involves having an appellate judge 's mentality - what wi1l prevail and what will fail. It involves telling a tale which has such attractiveness that the apel1ate judges will yearn for the proper results.  Literary references are appropriate." (emphasis added) .

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“... As most appeals are handled in the Intermediate appellate courts rather than the highest appellate courts, do not ask the court to change the law - it has little authority to do so. Argue on the basis of existing law, and fit your record of evidence into well-accepted legal principles.  Focus more on the state of the evidence and the findings of fact and show how well they comply with existing rules of law. Do not ask an appellate court to do more than is required to prevail. To change, modify or expand the law is usually reserved only for the highest appellate court.

  • In his Trial Practice Series on Advocacy, published by McGraw Hill, author Richard Givens quotes me as to appellate advocacy:

" I always consider the framing of the issue to be the most important aspect of the brief. The court should be able to read the issue and get a full flavor of the contention of the party and the merit of its position. This is especially important in certiorari applications where the judges read the statement of issue initially, and in most instances, never get past the reading of the statement of the issue." (emphasis added)

  • In my article "Portrait of an Oral Argument as a Reply Brief”, published by Citibar (NY City) in "The Record", I wrote as to appellate oral argument:

"By the time of oral argument the issues to be resolved have been both narrowed and sharpened. Initially it is to be expected that counsel for the appealing party will have selected only the several substantial issues for appellate review.”

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"The answering brief of the prosecution (the respondent) may well further limit the area of controversy... By now the area of differences between the parties may have been substantially narrowed. Only this difference need be decided by the appellate court. As such the thrust of the oral argument should be directed only to the more limited area of controversy. Little time should be wasted in repeating the broader picture initially painted by the brief; little time should be spent in discussing the background of the case, or in talking about the non-controversial aspects of the appeal. It is important counsel not forget the time allowed for oral argument is limited - usually twenty minutes. No time should be wasted. As many of the judges regularly ask questions of counsel, time must be allotted for that contingency." (emphasis added)

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"Counsel for the appealing party should promptly remind the Court what areas the government in its brief has conceded or limited. As such counsel can then pinpoint the issue for the Court, now that it has been narrowed. In effect the oral argument becomes a "reply brief," focusing only on the areas of controversy as posed by the prosecution in its answering brief. (emphasis added)

Elliot Wales

26 Broadway

New York, NY 10004-1801

Phone: 212-980-2160

Fax: 212-344-0991


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