In recognition of the upcoming Appellate Advocacy Institute (register here), Attorney Horton shares with us his memories from his own first appellate oral argument. Enjoy!
In my 48 years of practice, I have orally argued 130 appeals to the Connecticut Supreme Court. They have ranged from not very significant to very significant. But none have been as insignificant as the very first one.
After a year as a law clerk to Justice Charles House in 1970-71, I joined Regnier, Moller and Taylor, a Hartford insurance defense firm. The firm handled appeals as well as trials, but the extent of my appellate work for the first two years was research and writing. The lead trial lawyer almost always argued his (everyone was a his then) own appeal. But another associate, Hadleigh Howd, and I managed to sneak our own appeal in under the partnership radar.
In those days there was a Court of Common Pleas, where junior lawyers could learn how to try jury cases without risking a runaway verdict. So Hadleigh or I (I can’t remember which) filed a defense offer of judgment of $3,000 which was refused. The jury returned a verdict of $2,682.10, so we filed a bill for our taxable costs incurred after the filing of our offer, which amounted to $661.
The plaintiff opposed our bill on the ground that it was untimely filed one day before the start of trial, but the clerk, Lucien Jachimowitz, actually wrote a 2-page memorandum of decision granting our bill. The plaintiff moved for review and Judge Simon Cohen reversed the clerk’s decision from the bench. The clerk was outraged and urged Hadleigh and me to appeal, which we did.
Hadleigh and I were so excited to have our very own appeal, so we divided the argument. The first question Justice Alva Loiselle asked me was why a $661 bill of costs merited oral argument. I responded that the timeliness of the filing was an issue of considerable importance regardless of the amount involved, as reflected in the fact that the clerk had written a memorandum of decision. Having deftly handled my first ever question, I don’t recall any of the justices asking me another question as I rattled away for my allotted 12 minutes, apparently boring them.
Six weeks later (the Supreme Court moved with rocket speed in the 1970s), the Supreme Court reversed in the 7-page decision of Krawiec v. Kraft, 163 Conn. 445 (1972), ordering the plaintiff to reimburse us for our $661 bill of costs.
So does my first (half) appeal have teaching points for young associates? Here are the three I can think of:
Don’t wait for the partners to let you argue an appeal. Manufacture one that they won’t care that you are arguing.
Don’t let a question from a justice disconcert you. Calmly answer the question asked but stand your ground if you have a basis to do so.
Have a strategy for dealing with no questions, which does happen occasionally. Don’t rattle on for your allotted time; when you have said what you have to say, stop.