{"id":1142,"title":{"rendered":"Thoughts of a New Federal Judge About Appellate Advocacy"},"content":{"rendered":"

The Honorable Michael P. Allen\u200a1<\/a>\u200a<\/span><\/sup> That is a serious charge. As I said once to a law clerk when a brief included allegations of misrepresentation,<\/q> someone was going to be trouble. Either someone was lying to me or someone was falsely accusing someone of doing so. My point is that an advocate should not challenge the integrity of another lawyer so easily. Perhaps what you mean is that counsel misreads<\/q> the law or is mistaken<\/q> about the facts. These are very different ways to address the issue. I\u2019d caution advocates to be careful on these hidden types of civility matters.<\/p>\r\n\r\n

<\/a>I fully recognize that maintaining civility in the face of those who do not value that trait is not easy. I am not a Pollyanna. But doing the right thing is not always the easy thing. I believe lawyers have an obligation to be better<\/q> even when doing so is difficult. Yes, I also believe it will advance your position as an advocate, but in some sense, that is simply an ancillary benefit.<\/p>\r\n\r\n

<\/a>Much of what I have discussed thus far in this part comes from acting as a true advocate and officer of the court. You should also look the part. When someone steps up to argue and is disheveled or disorganized, it sends a message that they don\u2019t care about the proceedings. It is the courtroom manifestation of a sloppy brief. Your client deserves better. In addition, judges notice what advocates do in the courtroom even when the advocate is not at the lectern. Rolling of the eyes, shaking of the head, and exaggerated facial expressions do not advance your case in any respect.<\/p>\r\n\r\n

<\/a>In sum, your professional reputation and conduct in litigation affects your ability to be an effective appellate advocate. And without being overdramatic, it also affects the reputation of the judicial system itself. While these issues are not often tied to a discussion of proficiency in advocacy, I believe they are integral to the concept. I hope you take it to heart.<\/p>\r\n\r\n

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<\/a>Being a judge has given me a fresh perspective on what it takes to be an effective advocate. In some respects, my preconceived notions have been reinforced. But in other respects, I\u2019ve understood advocacy in an entirely new way. I guess it really is true that where you stand depends a great deal on where you sit. I hope that my reflections on advocacy as a new federal judge have provided some useful insights for you.<\/p>\r\n\r\n

Footnotes<\/h2>
\u200a1<\/a>\u200a<\/span>Michael P. Allen is a Judge of the United States Court of Appeals for Veterans Claims. Prior to his appointment by the President of the United States and confirmation by the United States Senate in 2017, Judge Allen was a Professor of Law at Stetson University College of Law in Florida for sixteen years. Before entering teaching, Judge Allen spent nine years in private practice at Ropes & Gray in Boston. He received his juris doctor degree from Columbia University Law School.<\/div>
\u200a2<\/a>\u200a<\/span>See Veterans\u2019 Judicial Review Act of 1988, Pub. L. No. 100-687, 102 Stat. 4105<\/a> (codified as amended in scattered sections of 38 U.S.C.).<\/div>
\u200a3<\/a>\u200a<\/span>My focus is on advocacy at the appellate level. However, I suspect that many of the matters I discuss are generally applicable to advocacy in a trial court setting as well.<\/div>
\u200a4<\/a>\u200a<\/span>28 U.S.C. \u00a7 2412(d)<\/a>.<\/div>
\u200a5<\/a>\u200a<\/span>See Model R. Prof\u2019l Conduct<\/span> 3.3<\/a>.<\/div>
\u200a6<\/a>\u200a<\/span>For example, a prominent dictionary notes that Misrepresent usually involves a deliberate intention to deceive, either for profit or advantage.<\/q> The Random House Dictionary of the English Language<\/cite> at 1230 (2d ed.; unabridged).<\/span><\/div>\r\n","protected":false},"excerpt":{"rendered":"

The Honorable Michael P. Allen<\/p>\n","protected":false},"meta":{"_citation":"6 Stetson J. Advoc. & L. 1 (2019)","_first_para":1,"footnotes":""},"class_list":["post-1142","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-23"]}