An appellate brief's Statement of Facts is critical to a successful appeal. The client trusts the attorney with his or her story. To fully hear it, the attorney must actively listen and demonstrate empathy in the initial interview. The attorney needs to step into the client's shoes to retell the story at trial. On appeal, however, the attorney needs to step into the appellate judge's shoes. The story must be recast for an audience knowing nothing about the client. It must be interesting, and appeal to the judge's spirit of justice. If the client suffered an injustice in the court below, the judge will seek to "do justice" for the client.
For the judge to right a wrong, the attorney must respect the appellate venue. Not only must the attorney craft the client's brief with a strong theme of justice, but also in accordance with the appropriate standard of review and court rules. Then the attorney must polish the client's story to achieve a clear, crisp, and captivating narrative. Writing an appellate brief requires sufficient training in people-oriented, appellate advocacy, and composition skills. Yet, the current legal education model falls short in providing these skills. The current model is more rules based than people based. Moot court competitions and mandatory appellate advocacy coursework typically involve canned fact patterns, denying the student opportunities for client interviewing and counseling. Clinical legal education offers excellent practical skills training, but participation is elective and opportunities are limited.
Therefore, most law school graduates and junior attorneys lack practice-ready skills. This Article calls for changes in the law school curriculum to better prepare students for lawyering. Indeed, employers in this tight legal job market are demanding change. Client-centered skills in interviewing and counseling should be required. Appellate advocacy and composition skills training should be strengthened. Doctrinal classes should integrate appellate practice into their curricula. Proper skills training will equip the attorney to step into the client's and the judge's shoes and write a clear, crisp, and captivating client story that is consistent with appellate standards of review and court rules. In reaching a just result, the judge, the attorney, and the client are all winners in the game of appellate musical shoes.
Laurie A. Lewis, Winning the Game of Appellate Musical Shoes: When the Appeals Band Plays, Jump from the Client’s to the Judge’s Shoes to Write the Statement of Facts Ballad, 46 WAKE FOREST L. REV. 983 (2011).