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Inn of Court ponders appellate law, Alaska gasline

by Sam Cason

The Anchorage Inn of Court held its February meeting on February 20, 2001. The CLE program was held at the Boney Courthouse and featured a presentation by Justice Warren Matthews of the Alaska Supreme Court. The dinner speaker was Jeff Lowenfels, President of Yukon Pacific Corp.

Justice Matthews' CLE presentation received excellent reviews. Justice Matthews presented an informal discussion of various aspects of appellate advocacy. He touched on various issues, including: oral argument (Should you or shouldn't you request it? Does it ever change any minds?); brief writing (What about those tips from "experts"? What about extensive use of footnotes?); structuring an appeal (Will the appellant actually benefit from a "shotgun" approach appealing every conceivable issue? Should the appellee feel obliged to follow the structure of appellant's argument?); and strategy (Should you give an extensive recitation of the facts? How do you respond to an incomprehensible argument?). (The top 10 suggestions provided by Justice Matthews are also included in this issue.)

Some of the advice was straightforward: Be well prepared and don't read your brief to the Court. Some advice was pointed: Don't engage in ad hominem attacks on the opposing counsel and particularly avoid personal attacks on the trial judge. During the course of the discussion, members of the Inn had the opportunity to ask questions and catch glimpses of the inner workings of the Court. Does the bench confer in advance of oral argument? For what purposes do the Justices ask questions? Justice Matthews responded graciously and with disarming candor to the numerous questions posed by the attendees. Of particular interest was the question of whether the Bar can expect to see a proposed "Practice of Law" rule and the Court's use of unpublished Memorandum Opinions & Judgment ("MOJ's").

After Justice Matthews spoke, we moved on for our dinner presentation. Dinner at the Hilton Chart Room was, as always, a treat. The members convened for conversation and discussion of Justice Matthews' presentation before hitting the buffet line. Due to time constraints, Jeff Lowenfels went without dinner and began his speech as the first forks were hitting the teriyaki chicken and lemon glazed halibut.

Armed with an extensive PowerPoint presentation of pie charts, bar graphs, line graphs, detailed cost comparisons, and other eye-catching visual graphics (including one using the image of Heather Locklear), Lowenfels spent the next hour giving a guided tour of the CSX/Yukon Pacific perspective of the various gas pipeline proposals.

With great animation and passion he pointed out that constructing a gas line along the proposed highway route (as supported by the Governor) would require rescinding existing federal law, abrogation of a current treaty with Canada, and would arrive at a distribution system that is already full. A gas pipeline with a Valdez terminus, on the other hand, would be much shorter, come close enough to Anchorage to make a spur economically feasible, is already fully permitted, and would have a ready market. In addition, the Yukon Pacific route appears to provide the greatest benefit to Alaskans in the form of delivering gas and jobs.

There was earnest discussion of the merits of some of Lowenfels' positions, and he endured several probing questions regarding the substance of his remarks along with some ribbing for not giving a gardening talk. Considering everyone's nominal occupation as lawyers, a surprising number of the dinner guests had undergraduate degrees in hydrology, geology, and petroleum engineering (or at least they said so). This accounted for some lively questions for Lowenfels.

Dinner closed with an announcement by Inn President Diane Vallentine that the April CLE presentation will be conducted by Bankruptcy Judge MacDonald, who has some advice for general practitioners who might find themselves (or their clients) in Bankruptcy Court.

The Anchorage Inn of Court is a local Inn of the American Inns of Court Foundation, an organization dedicated to the advancement of ethics, civility, and professionalism within the practice of law. Loosely structured after the English Inns of Court, the Inn meets once a month from September through May.


Appellate advocacy tips from an Alaska Supreme Court justice

The following points were taken from Justice Warren W. Matthews' presentation on February 20, 2001 to the Anchorage Inn of Court: ORAL ARGUMENT:

  • Generally, it is better to request oral argument than to allow a decision on the briefs.
  • At oral argument, don't just read your argument. It's fine to have notes, but make eye contact and interact with the judges.
  • Oral argument does change minds and may confirm a justice's tentative opinion about the outcome of a case.
  • Justices don't confer in advance of oral argument on a case. They will typically have a memorandum regarding the case.
  • Justices will have a group conference on cases even if there is no oral argument.
  • It is generally a mistake to dwell on the facts in oral argument. Of course, you need to mention important facts, but focus more on your legal arguments.
  • It is OK to tell the court that you aren't going to argue a particular point in oral argument, but will defer to the argument on that point in the briefs.
  • Give a brief summary of your argument first, then your argument. That way the justices will know what you want to talk about and you will have made your point before questions begin.
  • Best way to answer a direct question from a justice is to answer yes or no, then qualify that answer, if necessary, with your response.
  • It's OK to ask a justice to clarify a question.
  • It's OK to tell the court that you think an issue raised in a question is outside the scope of the case.
  • Don't despair in the face of hostile questioning. Stick to your case and make your points.
  • Some justices use oral argument as a means of communicating to other justices what they believe to be the weaknesses of a law clerk's position in a clerk's pre-oral memorandum.
  • Visual aids at oral argument are OK if they can be seen. Visual aids might be effective in cases where, for example, particular contract language is at issue.

BRIEF WRITING

  • The court expects that an appellee will respond to the appellant's argument, but the appellee is not limited to what the appellant argues.
  • An appellee may wish to use his or her own organization of argument rather than the appellant's.
  • Don't personally attack opposing counsel or the trial judge. Challenge the ruling, not the person.
  • Pro per cases are difficult for the court. The court is counting on you to explain what and why something occurred.
  • Excellent briefs read like a good narrative or story with no gaps in the story. They contain an objective discussion of the law.
  • A summary of argument before each argument can be helpful. Bryan Garner recommends 75 words or less, but that can be a challenge.
  • Justice Matthews tends to be in the minimalist camp on points briefed. Focus on 3-5 issues. Try not to dilute your case.
  • The appellate court is interested in what the lower court ruled.
  • Block quotes are useful, but not if they are too long. It is better to summarize what the cases say in your own words and then give the block quotes you need.
  • Your credibility is your stock in trade with the appellate courts.
  • The court finds that an unpublished Memorandum Opinion and Judgment ("MOJ") is a fast and accurate way for dealing with some cases. If the case can be resolved with reference to established law, it may be issued as an MOJ.
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