February 2004

Appellate Practice Tips: The Supreme Court Visits Bellingham

by Elizabeth Li

The Washington State Supreme Court heard oral arguments in Bellingham on November 16, 2003, at Western Washington University. The day before oral arguments, the Court presented a free one-hour CLE on appellate practice. A reception followed, providing an opportunity for members of the local communities to chat informally with the justices.

Justice Barbara Madsen led the CLE. She mentioned several Supreme Court "hot off the press" issues, but the one that stands out addresses the recovery of attorneys' fees. Specifically, the Supreme Court will award attorneys' fees only if the request is made in the opening brief or the response. Requests raised for the first time in the reply brief are too late. Requests made in the Court of Appeals will be considered as a continuing request to the Supreme Court. Rules of Appellate Procedure 18.1 has been amended to reflect the change.

Here's a summary of Tips on Appellate Practice from each justice:

Chief Justice Gerry Alexander: No petty or sarcastic language. You can only get away with "rectally submitted" as a typo once.

Justice Charles Johnson: Narrow your focus to the reason(s) why you are before the Court. Remember the reasons why the Court decided to hear your case.

Justice Barbara Madsen: Provide cites for arguments. Address all opposing arguments. Be specific about requested relief. Provide the language for the rule you want the Court to adopt. Explain what the court below did and why, since it is not always clear on review. Look for amicus in areas requiring expertise. Don't fudge facts.

Justice Richard Sanders: Discuss relevant text in your brief, since eight of the nine justices have only the briefs. If you do not quote the actual text in your brief, attach a copy of the relevant text as an addendum to brief. Read and think about the governing rule/text to clarify misconceptions.

Justice Faith Ireland: Listen to the Court's comments. Don't get derailed by grilling questions; answer the questions, then segue to your next argument. If you can't segue, it is perfectly acceptable to respond with, "Your Honor, I just can't give you a better answer." Don't maintain eye contact with a justice who has already grilled you with five questions in a row. Don't interrupt a justice.

Justice Tom Chambers: Never tell Justice Ireland she missed the point! Write good briefs, because oral arguments rarely persuade a change in opinion. State facts at the beginning and then integrate key facts into law during your argument. Justices have already read four versions of facts before oral argument, so don't waste time reciting facts, but do integrate key facts into oral argument.

Justice Bobbe Bridge: Be flexible enough during oral argument to answer the question asked now, not later. Learn to recognize a softball question.

Justice Susan Owens: The best oral arguments are like conversations.

Justice Mary Fairhurst: Make it easy for the Court — provide a roadmap using headings, paragraphs, and the same terminology throughout.

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Elizabeth Li is the 2003-2006 Northwest District trustee for the WSBA Young Lawyers Division (WYLD). She practices immigration law in Bellingham and can be reached at 360-392-3990 or eli@elizabethli.com.

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