Did you know that the Sixth Circuit’s website features a series of video clips produced by the Federal Public Defender’s Office for the Southern District of Ohio that offer training advice for practice under the Criminal Justice Act (“CJA”), 28 U.S.C. § 3006A? The video clips do not have Hollywood style production values (we are talking pro bono practice, after all), but they do offer very useful information for practice under the CJA, which provides counsel for indigent defendants.
One of the best videos in the series is an interview with Judge Jeffrey Sutton who provides an in-depth discussion on effective appellate advocacy before the Sixth Circuit. Judge Sutton tackles a number of topics in his video interview, including (1) the best way to write a persuasive appellate brief, (2) how to organize arguments in a brief, (3) how the Sixth Circuit views the Summary of the Argument section, (4) how to write a compelling Statement of Facts section, (5) how to prepare effectively for oral argument, (6) how oral argument factors into the Sixth Circuit’s decision making process, and (7) rookie mistakes to avoid in appellate practice.
Judge Sutton, for example, emphasizes how every lawyer who appears before the Sixth Circuit needs to properly frame the appeal for the Court. Yet Judge Sutton observes that “a lot of lawyers in the Sixth Circuit really do not have a theory of the case. They have a lot of potential ideas that they think a court of appeals panel might agree with, but they really don’t have any one way of thinking about the case which they think is the right way to look at the law. And what that leads to is a brief with one alternative theory after another really lacking in conviction . . . .” Judge Sutton notes that the problems associated with an ineffective brief invariably carry over to oral argument: “As soon as the lawyer meets some resistance on a point, they just continue to switch, and you’re left with this sense from the panel as a judge that the lawyer really doesn’t have any real conviction about one theory of the case and how to handle it. So the theory of the case is absolutely critical.”
As is evident, the insight and advice offered by Judge Sutton in his video interview is not limited to CJA practice, but rather has broad application to all appellate practitioners. If you are new to the Sixth Circuit, Judge Sutton’s 18 minute video can be a valuable tool for helping you excel in your appeal. And even if you are a seasoned appellate veteran, Judge Sutton’s advice could make a critical difference in your next appeal before the Sixth Circuit.
View the training videos on the Sixth Circuit’s website.
By the way, in case you are not aware or have not thought about it, representing indigent clients under the CJA can be a highly rewarding experience, as most of the blog writers for the Sixth Circuit Appellate Blog can attest. It is an especially great opportunity for young lawyers to develop appellate experience while fulfilling their community service and pro bono responsibilities. I encourage you to consider becoming a CJA panel member.