Book notes: The Appellate Prosecutor: A Practical and Inspirational Guide to Appellate Advocacy (Ronald H. Clark ed. 2005)

 

This volume contains short chapters authored by various judges and attorneys on appellate practice from the prosecution's perspective.  In addition to the forward, there are seventeen chapters titled as follows:

1. Persuasion, Planning and Analysis for Appellate Advocacy
2. Writing the Brief
3. Sample Appellate Brief Template
4. Short Declarative Sentences: The Key to Good Legal Writing
5. Writing the Persuasive Brief (And Some Matters of Style)
6. Appellate Strategies
7. Research Resources: An Appellate Lawyer's Tools of the Trade
8. Standards of Review: The First Line of Defense
9. Protecting the Record for Appeal: Advice for the Trial Prosecutor
10. Professional Responsibility on Appeal
11. How Appealing is Your Case? Eight Considerations That May Influence a Decision to Appeal
12. Successful Appellate Oral Advocacy
13. Taking Advantage of Oral Argument
14. Decision Making: Conferencing of Cases
15. Judicial Conferencing in Appellate Courts
16. Fielding Difficult Questions From the Bench
17. Inspirational Works for the Appellate Prosecutor

At 219 total pages in the book, these chapters are necessarily short.  Some chapters aren't that helpful and some authors are better writers than others.

Nonetheless, this book is recommended.  If you bring criminal direct appeals, the book provides insight into how the State may approach your case.  That was the reason I read the book before attending NLADA's Appellate Defender Training in May 2025 - the contrast in approaches is very useful for understanding criminal appeals.

The recommendations on how to draft a statement of facts (pp. 33-40) illustrate this point.  The author gives several great examples of how to draft these statements in a way highly favorable to the State.  The key is to make judges want to rule for you, that "the judges' emotional sympathies and feelings of fair play make them hope they are able to rule for you." (p. 34)  The State can relay the facts "in the light most favorable to the jury's verdict" and should do so by telling a story, not summarizing witness testimony. (pp. 34-35)

Similarly, at various points the book identifies techniques used by defense counsel and how the State should combat them.  We are told that witness by witness recitation of the facts "is a defense technique, designed to suck the life out of the story of the case." (p. 35)  State's counsel should anticipate defense counsel's "attempt to transmute discretionary questions into mixed questions of law and fact that are reviewed de novo." (p. 125)  And do not allow gaps of silence in the record - such as off-the-record discussions - or "the defense bar [will] fill such silences with inflammatory speculation which proves disturbing to the appellate courts...." (p. 133)

The book is also a good primer or review of techniques and tips for any appellate practice.  For example, various authors recommend telling a story when relating the facts, as opposed to proceeding in a chronological fashion or summarizing testimony witness by witness. (pp. 19, 35, 69, 70)  Chapters 2, 5, 6, 8, 12, 13, and 16 were great refreshers.

If you are trying to understand criminal appeals better, or simply want a primer or review of appellate practice, this book is worth your time and attention.  I have several pages of notes to show for my effort and will incorporate these into my practice.

Thanks for reading.