Appellate Practice Insights From Judge Vernoia

The guest speaker at last night’s meeting of the NJSBA Appellate Practice Committee was Judge Vernoia. He offered some of his thoughts and insights about appellate practice and answered questions from Committee members. It was a very valuable presentation. Here is some of what he had to say.

Judge Vernoia said that the biggest problem that he sees with appellate briefs is that there is a disconnect between the writer and the reader. He emphasized the importance of writing for the reader, not for counsel who is writing the brief or for counsel’s client. Appellate Division judges, he noted, are swamped with work. He himself will write 100 opinions this year, and he will read the briefs in 225 or so appeals altogether. Because of that volume of work, it is important that briefs “spoon-feed” the judges, not because judges are incapable of understanding the issues, but because doing so will help judges to find for the writer’s side.

Judge Vernoia gave some examples. Keep in mind, he said, the goal of writing a brief so that it stands out in a judge’s mind, and so that the judge will want to rule in the writer’s favor. Breaking that down, Judge Vernoia suggested considering whether, if a brief were to end after a particular section (say, the Preliminary Statement, the Statement of Facts, or any particular Point in the Argument section) a judge would have read enough to decide as the writer would want. That is perhaps a shorthand (my shorthand, not Judge Vernoia’s) for the idea that some judges may stop reading a brief at a certain point, so that it is good to “grab them” up front.

In speaking of what is “up front,” Judge Vernoia addressed the Preliminary Statement. He said that too often, such statements, the first thing a judge sees when reading a brief, are ineffective. Many times they consist of summaries of the facts and procedural history that are then followed by … the facts and procedural history.

Judge Vernoia feels that a more effective Preliminary Statement would put the issue on the appeal front and center, so that judges will know right away what the case is about and what to focus on as they read the rest of the brief. He noted that the rules of the Third Circuit require that a brief state the issue(s) presented up front, a practice that he favors. Unfortunately, Judge Vernoia said, there are briefs that do not identify the issue until page 28, leaving judges in the dark until then.

Many appellate briefs are too long, Judge Vernoia said. They have too much in the way of unnecessary facts, too much vitriol (which he said is the least effective way to argue one’s case), and too much repetition. A shorter brief, Judge Vernoia remarked, stands out in a way that a longer brief does not. He referred to the fact that we can and do encapsulate the nature of an appeal when discussing it with a colleague at lunch, or with a spouse. Using that sort of summary near the start of a brief would enhance the presentation.

In a lengthy discussion about unpublished opinions that resulted, in part, from questions, Judge Vernioa noted a tension on that subject in the Court Rules. Those Rules forbid judges from citing unpublished opinions, but they permit counsel to cite them in briefs, provided (among other requirements) that they supply copies of the cited opinion(s).

Judge Vernoia advocated a middle course regarding such opinions. Though it is easy to find them through electronic means, avoid citing too many, since they are still second best to published decisions. But if there are one or two unpublished opinions that are directly on point, counsel should offer them. Judges may be persuaded by the reasoning of an opinion that is unpublished even if those opinions cannot be cited in a panel’s ruling.

As to oral argument, Judge Vernoia said that he learns something about an appeal at pretty much every oral argument. He had much else to say about that subject as well.

The members of the Appellate Practice Committee always appreciate judges who take time out of their evening to share their thoughts about appellate work. At the end of his lengthy presentation, Judge Vernoia earned a well-deserved round of applause.