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50 S. C. L. Rev. 567 (1998-1999)
Remarks on Appellate Advocacy

handle is hein.journals/sclr50 and id is 577 raw text is: REMARKS ON APPELLATE ADVOCACY THE HONORABLE RUTH BADER GINSBURG* My remarks are about a part of the law business I encounter regularly-appellate advocacy. I enjoyed the give-and-take characteristic of appellate advocacy as a lawyer and law teacher; I enjoy it even more as a judge-it is nice to pose questions that no one dares answer: Unprepared. (My revered former D.C. Circuit colleague, Carl McGowan, a truly great appellate judge, once said, and I agree: Law teaching and appellate judging are more alike than any other two ways of working at the law.) Turning to the starting line, my first words of caution to lawyers contemplating an appeal: perhaps you shouldn't. In the federal courts, of all appeals decided on the merits, over eighty percent are affirmed; the administrative agencies whose actions federal courts review fare almost as well. District court judgments generally survive appeal unmodified, not just because courts of appeals review many issues under a deferential standard, but too often because the appellant's case is exceedingly weak. Appellate review is more than occasionally sought simply because it is available and inexpensive. This is disturbing to appellate judges who face mounting caseloads. One way overworked appellate judges show their concern is by imposing costs, fees, and sometimes damages on counsel who pursue unworthy appeals. But hope springs eternal, and if a decision is made to take a case up, both sides should make sure to heed the rules, in their most recent version, not only the Federal Rules of Appellate Procedure, but local rules and practices on what must be filed, when, in what form, and in how many pages. Appellate courts take rules seriously. I recall, for example, a brief for the appellant turned back by the D.C. Circuit Clerk's Office because it was too long. Instead of complying with the page limitation, however, counsel had the brief reset, word for word, using 1- 2 line in lieu of double spacing. The upshot, the court was indulgent; it gave counsel an overnight opportunity, on pain of dismissing the appeal, to do the trimming job he should have done originally. Let's turn specifically to the written and oral appeal components, the briefs and the day in court-more accurately these days in busy federal courts of appeals, twenty minutes, fifteen, sometimes only five or ten minutes, tops half hour per side (reserved for the weightiest cases). As between briefing and argument, there is near-universal agreement among federal appellate judges that the brief is more important-certainly it is more enduring. Oral argument * Associate Justice, Supreme Court of the United States. These remarks were delivered in a 1991 program on appellate advocacy sponsored by the D. C. Bar/George Washington University National Law Center. At that time, Justice Ginsburg was a member of the United States Court of Appeals for the District of Columbia Circuit. Justice Ginsburg edited the remarks in January 1999 for inclusion in this issue.

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