KU Law News
KU Law News
March 30, 2010
Kansas appeals court judges reveal winning strategies to future attorneys during student Q&A
Kansas Court of Appeals Judge Nancy Caplinger speaks to first-year law students as judges Steve Leben, L'82, left, and Henry Green, L'75, listen.
LAWRENCE – Three judges from the Kansas Court of Appeals shared expert tips with future attorneys during a question-and-answer session last week at the University of Kansas School of Law.
After hearing cases on a morning docket, Judges Nancy Caplinger, Henry Green and Steve Leben schooled first-year Lawyering students on the crucial elements of practicing before the Court of Appeals.
One point upon which they all agreed: Write a compelling brief that captures the attention of judges.
“You have to challenge us, to make us want to really read and understand your argument,” said Green, a 1975 graduate of the KU School of Law. “You have to try and challenge us intellectually. If you don’t, we’re not going to be able to spend the time because we’re a volume court.”
“My research attorney, whenever she sees a really good brief, she comes to me immediately – and she won’t let me do anything else until I pick up the brief and start reading it along with her.
Green’s other tips:
- Be conscientious about making the record in a case. This doesn’t happen right before the trial, he said, but from the time a client walks through the door and a lawyer begins making determinations about the case, witnesses and evidence.
- Make timely objections. Appeals courts may not consider failed motions to suppress, for example, if an attorney doesn’t put a contemporaneous objection on the record at the trial court level.
- Make proffers. If the trial court rejects the admission of certain evidence, the lawyer should make a proffer, explaining what she expected to show if the evidence had been allowed. Trial courts are required to allow the filing of proffers, and failing to do so could allow an appeals ruling in the filing attorney’s favor, Green said.
- Represent the facts in the brief correctly. “We have very good research attorneys who are able to tell us whether or not you have slanted the facts,” Green said.
- Always make your best argument before the appellate court; it might be your last shot. Lawyers are free to file a petition for review with the Kansas Supreme Court, but the court only grants about 6 percent of those petitions each term.
Caplinger complimented the quality of teaching and learning at KU Law and other area law schools, based on what she observes in advocates from her perch on the bench.
“It’s so frequently new attorneys that impress me,” she said. “I think whatever you’re being taught here about legal research and writing is working.”
She urged students to take the Lawyering class seriously.
“There’s just no way anything is more important than your legal research and writing class,” she said. “It’s everything you’re going to be doing no matter what you choose to do in ‘the afterlife.’”
Echoing her colleague, Caplinger encouraged conciseness and directness in briefs, honesty in factual citations and bringing the “A” game to oral arguments.
Leben, a 1982 KU Law graduate, cited legal writing guru Brian Garner’s Modern American Usage and his Dictionary of Modern Legal Usage as good references when an attorney is trying to justify a usage convention with which an editor disagrees. He also seconded Garner’s advice to read a book every quarter about writing.
“For many of us, our only work product is writing,” Leben said. “You ought to be working on that skill throughout your career.”