Thomas & Lincoln on Appellate Practice: Your Credibility is Everything (The Bryan Garner Interviews IV)


"You don't want to lose credibility," Justice Thomas told Bryan Garner during their 2007 interview [pdf]. "That is the one thing you bring with you. And if you lose it, it's hard to get it back."

A lawyer's credibility is his or her stock in trade, and that's especially true in the appellate courts. Appellate judges rely on the lawyers before them to give an honest account of the facts below, and enter into an open dialogue about the application of the law to those facts. As Justice Kennedy said, "I've learned that the judges really want your help."

Few lawyers would question the proposition that they have a duty to be fair and honest about the facts and the record. Justice Ginsburg points that out in her interview with Garner: "if a brief-writer is going to slant something or miscite an authority, if the judge spots that one time, the brief will be distrusted - the rest of it." Nevertheless, it happens, at least in the intermediate appellate courts. After twenty-five years practicing in the appellate courts, I've certainly seen record cites that don't support the accompanying factual assertion. And once in a great while you see brief-writers whose discussion of a few key authorities stretches the boundaries a little too far.

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