By Mark Ritchie, Law Office of Mark Ritchie, P.C.
There is no more defining characteristic of appellate practice, and appellate practitioners, than the tendency toward candor and intellectual honesty. While the reputation of our profession is such that the very notion of an “honest lawyer” seems surprising, if not wholly oxymoronic, it is not difficult to understand why intellectual honesty is more or less de rigueur on appeal. Appellate lawyers are, both by training and temperament, a more nuanced, dispassionate, and circumspect, which makes them more intellectually rigorous in their own work, and also more effective in rooting out intellectual dishonesty on the part of others. See Brad Pauley, So You Want To Be an Appellate Lawyer?, 32 GP Solo 10, 12 (Sept./Oct. 2015) (noting that good appellate lawyers typically share a capacity for critical reasoning and detached assessment); The American Academy of Appellate Lawyers, Statement on the Functions and Future of Appellate Lawyers, 8 J. APP. PRAC. & PROCESS 1, 5 (2006) (describing the appellate lawyer as the “traditional solver of legal problems” responsible for providing legal analysis that both advances the client’s cause and the development of the law).
Appellate lawyers are taught early on that candor is a necessity, and (perhaps more importantly) the use of less-than-candid arguments is almost certain to end in disaster:
Cases that are totally one-sided usually don’t make it to the court of appeals. In cases that do, almost all parties—plaintiffs or defendants, appellants or appellees—have some weakness in their position, some point they’d rather not discuss but would be foolish not to. . . . If your position has a weakness, the chances that three or more judges, and each of their law clerks, will all overlook that weakness are exceedingly slim.
Raymond M. Kethledge, A Judge Lays Down the Law on Writing Appellate Briefs, 32 GP Solo 24, 25 (Sept./Oct. 2015). Still, the value attached to candor does have practical limits, and at times even the most conscientious lawyer will struggle to square his or her obligations as an advocate with the “principle of charity.”
For an argument to be logically sound, the principle of charity requires us to avoid straw-man arguments and similar rhetorical tricks, instead addressing our arguments to the best, strongest possible interpretation of an opponent’s position. Leo Groarke, Informal Logic, THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Spring 2017 ed.); see also SIMON BLACKBURN, THE OXFORD DICTIONARY OF PHILOSOPHY 62 (1st ed. 1994) (stating that principle of charity “constrains the interpreter to maximize the truth or rationality in the subject’s sayings”). The level of candor necessary to adhere to this principle is usually minimal in the context of appellate argument, often only requiring an occasional word of praise or concession in the face of arguments that are particularly well-developed. As a result, most of us find it painless to concede a point as a tactical measure, allowing us to shore up our credibility with the court while we await opportunities to redirect the argument in more favorable directions. See Andrew S. Sollis, Ten Tips for Persuasive Oral Argument, 32 GP Solo 32, 36 (Sept./Oct. 2015) (noting that concession of points not needed to win argument reinforces the lawyer’s integrity in the eyes of the court).
While the occasional concession is an easy-enough pill to swallow as part of the greater strategy for winning our case, few of us take any great pleasure in the task. We may be appellate lawyers, but we are still lawyers, and so the willingness to concede a point, even an inconsequential one, is not necessarily our first impulse. See Solis, supra at 36 (“Lawyers tend to be reluctant to concede anything—even points that we don’t really need to win. It’s ingrained in us not to give any ground unless we absolutely must.”). However . . . the case can be made for a contrarian approach that not only observes, but systematically embraces the principle of charity as a tool for crafting one’s arguments. Providing a “sympathetic summary” of your opponent’s arguments (the term coined for Darwin’s use of this approach in The Origin of Species) can be a tremendously persuasive approach, and one that is particularly suited for uphill battles to persuade those who are particularly skeptical or suspicious.
As a tool for appellate argument, sympathetic summary could reasonably be described as “the principle of charity on steroids,” as it requires us not only to anticipate the arguments of opposing counsel, but to truly immerse ourselves in them. “[C]ounterargument to your own should first be summarized in its strongest form, with holes caulked as they appear, and minor inconsistencies or infelicities of phrasing looked past. Then, and only then, should a critique begin.” ADAM GOPNIK, ANGELS AND AGES: A SHORT BOOK ABOUT DARWIN, LINCOLN, AND MODERN LIFE 120 (Kindle ed. 2009). Taking a step beyond the mere intellectual honesty required by the principle of charity, sympathetic summary requires that we do all we can to understand and appreciate the deeper intuitive and emotional resonance embodied by our opponent’s arguments. See id. at 118-20 (“Darwin not only posits the counterclaims; he inhabits them. He makes the negative case as urgent and the positive claims . . . reporting an objection or contrary argument . . . if possible with greater force than its own believers[.]”) As a tool for defeating arguments contrary to your own, the strength of this approach lies in developing a measure of “intellectual empathy,” allowing the practitioner to anticipate and preempt arguments by understanding them more fully than their actual proponents, then developing the most robust counterarguments possible. Id. at 118 (observing that this approach allowed Darwin to anticipate arguments against his theory that no one had yet made, in “a really amazing piece of intellectual empathy, and of beating one’s opponents to the punch”).
Moreover, sympathetic summary is an exceptionally useful format for presenting arguments in writing, especially when the court is initially skeptical of your position. By carefully setting out the objections to your position, taking the time to fully acknowledging their perceived strengths before only then presenting the most persuasive counterargument, the sympathetic summary inspires the court to confidence in your position by providing an analytical roadmap to the “right” answer. See id. at 116 (characterizing sympathetic summary as an approach that is “charitable by name, [but] selfishly constructive in intent” because “only by putting the best case forward can the refutation be definitive”). The systematic guide to each side’s arguments is tremendously useful to the court, and will no doubt continue to persuade the court as it drafts its opinion in a way unmatched by the typical “he said, she said” exchange. Indeed, this approach is particularly well-suited for appellate argument precisely because it replicates the court’s perspective, seeking to address the issues in the case as problems to be solved rather than contests to be won. J. Frederic Voros, Jr., To Persuade a Judge, Think Like a Judge, UTAH B. J., Sept./Oct. 2011, at 12, 12. By taking the time to present argument in this format, you provide the court with a ready-made guide to defending its ultimate decision, shouldering the analytical heavy lifting on the court’s behalf in favor of your client’s desired outcome. See id. (stating that “[e]very appellate decision also represents an incremental evolution in the law” that must be defended, and that the likelihood of success is enhanced by providing argument that allows the court to justify its decision with intellectual integrity).
While the advantages of sympathetic summary are readily apparent, it is equally clear that they come at a significant cost. The additional time and effort required to provide a fair and complete account of your opponent’s arguments adds up quickly, and choosing to dedicate substantial space to summarizing your opponent’s best arguments may not be an option when word-count limitations dictate otherwise. Still, the sympathetic summary is an undeniably powerful tool for appellate argument, and under the right circumstances it provides an unparalleled method for influencing the court’s decision.