The Perils of Overstatement
The lawyer, who is prominently affiliated with an elite East Coast institution, should have been careful to adopt a respectful tone toward the midwestern state judges he was addressing. We read the briefs before the case was argued. We concluded that, if the judges thought the issue otherwise close, human nature probably would make them want to rule against the defendant because of his lawyer‘s imperious tone. We are not mind readers, but we do know that the defendant lost on appeal by a 2-1 vote.
The brief of an appellee or respondent — the “bottomside” brief, in the jargon of appellate practice — has certain special features. The bottomside brief writer has the disadvantage of not being able to introduce the judges to the case and the issues; they will read the topside brief first. But there are advantages too. The party filing second has a target to shoot at: the appellant‘s brief. And, except in cases involving cross-appeals, the bottomside writer has prevailed below on all of the issues before the appellate court; that litigant has the advantages that flow from having already had one decisionmaker agree with its position. The bottomside party wins if the decision below was right on the merits or if appellate issues were not preserved below.
The first item on the checklist of the writer of the bottomside brief should be to ask: Was each of the arguments now being raised on appeal properly preserved below? Were alleged instructional errors properly objected to? Were the grounds now advanced for overturning evidentiary rulings the same ones offered in timely objections at trial? In a related vein, is the legal theory urged on appeal the same one presented to the trial court and, if not, is there an advantage to be gained from the change?
-Appellate rules usually give the bottomside brief writer the optio