Monday, October 22, 2012

The Appellant as Presidential Challenger

The conventional wisdom of the 2012 presidential race is that Governor Romney must give undecided voters a legitimate excuse to vote against President Obama, who remains personally likable among independents, despite their widely held belief that he has failed to failed to fulfill the promises he made upon entering office.  According to this popular notion, Romney can't take an overly aggressive stance against the president, lest he turn off the independents he desperately needs to secure victory.  Though many in Governor Romney's own party are hardly shy in expressing their distaste of President Obama's policies, pundits argue that Governor Romney must offer a more delicate touch, and campaign on a theme  of promises broken and goals unachieved. 

This is not to say that Governor Romney has never veered from this theme.  Indeed, one could argue that Romney's confrontational style in both debates undermined the general tone of his campaign.  The point is, rather, that Governor Romney has had to walk a fine line in vigorously pressing his case against President Obama without letting it degenerate into a full frontal ad hominem attack against the president himself. 
In appellate advocacy, the appellant, placed in the difficult position of arguing that the lower court committed error, must walk the same fine line.  He must vigorously advocate for his client, but, in doing so, can easily allow emotions take over and let the argument's tone deteriorate into of anger and self-righteousness.  This danger is especially pronounced when the losing trial lawyer drafts the appellate brief.  Having expended a tremendous amount of time and energy litigating the case below, the attorney may unintentionally use the brief-writing experience as a cathartic exercise and spill his bottled-up frustration onto paper.  But, this works to the client's detriment.  After all, many appellate judges served as trial judges; absent a crystal clear record, they are loath to accept the notion that their counterparts below acted in bad faith.
This, however, does not mean that appellate court judges don't believe that their counterparts below make mistakes.  Reformulate "the trial court flagrantly ignored dispositive precedent" to "the trial court overlooked binding case law" or "unfortunately, the lower court did not consider."  Like the independent voter, the appellate judge needs a reasonable excuse to reverse.  Building an argument based on a theme of disappointment and regret, and not one of bitterness and acrimony, will do just that.         

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