Even though I write all the appellate briefs and argue all the appeals for my office, and even though I have been blogging about New York personal injury issues for almost a decade, and even though I spent two years clerking for an appellate court (Fourth Department in Rochester) before I began representing personal injury victims, I just realized I have never blogged about the process of arguing an appeal. It’s time!
I’m not going to talk about writing the brief: That’s way too technical and boring for this blog spot. I’ll address the actual oral argument.
By the time we get to oral argument, both sides have researched all the law and how it applies to the facts of the case. Both sides have made all their arguments in writing – in the “Briefs”. The Appellant fires the first salvo with an Appellate Brief arguing for a reversal or modification of the lower court’s order or judgment. The “Respondent”, who won in the court below and wants an “affirmance”, then files its Responding Brief to try to undermine the arguments in the Appellant’s Brief. The Appellant gets to fire the last shot with a Reply Brief, which tries to poke holes in the Responding Brief.