Appellate advocacy is the art of persuading, through oral and written communication, a majority of the judges or justices hearing your case to rule in your client’s favor. To be effective, a mastery of the relevant law and policy is not always enough. As Judge Richard A. Posner of the Seventh Circuit Court of Appeals has explained, “a sense of the audience is the key to an advocate’s rhetorical effectiveness. The advocate must think his way into the brains of the audience.” Despite the creation of the new Court of Appeals, the Nevada Supreme Court remains the primary audience for the Nevada business community’s appeals, as matters originating in business court are presumptively retained by the state’s highest tribunal.1 Thus, an appellate practitioner representing Nevada’s businesses must place himself or herself inside the minds of the Nevada Supreme Court Justices by knowing how they vote in addition to the rationale set forth in the Court’s opinions explaining why they voted in the manner that they did.
One innovative way for an advocate to study the appellate audience is by tracking the voting relationships between Nevada’s Supreme Court Justices; think of it as a form of appellate “moneyball” or “jury research.” For example, the following charts represent the level of agreement between Nevada Supreme Court Justices in published en banc cases during the 2014 calendar year. The cells represent the percentage of time that each of the Justices agreed with each other in full, in part, or in judgment in a majority, concurring, or dissenting opinion.
Justice Agreement – All Cases 2014
The first chart encapsulates all published en banc decisions from 2014. Admittedly, some judgment is involved when ascertaining whether the Justices actually agreed despite the labels attached to their opinions. But, as one can see, there is generally a high level of agreement between members of the Court. Nonetheless, certain voting patterns can be observed. Those patterns become more pronounced when examining only non-unanimous opinions—cases with at least one concurring or dissenting opinion.
Justice Agreement – Non-Unanimous Cases 2014
By examining these statistical voting relationships (and others over longer periods of time or involving certain specific classes of cases), a savvy advocate can identify Justices with similar judicial philosophies and interpretative methods, or Justices who are more or less likely to vote with one another depending upon the issues involved. Utilizing this information, an advocate can craft his or her briefs and oral argument strategies to maximize persuasiveness and increase the likelihood that the Court will rule in favor of the client. Additionally, this data can help advocates predict the possible outcomes of an appeal, making it easier to advise business clients to seek appellate review or pursue settlement. The ability to reliably predict how the Nevada Supreme Court might rule on an appeal can provide a tactical advantage for an advocate and allow a client to make a more informed business decision by calculating the potential financial costs and benefits of an appeal.
To best serve Nevada’s businesses on an appeal before the Nevada Supreme Court, an appellate advocate must possess an in-depth knowledge of the law and an intimate familiarity with the appellate audience. While there is no substitute for favorable caselaw and authority, statistical analyses of voting relationships can provide the strategic and rhetorical edge that could be the difference between an affirmance and a reversal.
By Jordan T. Smith, associate, Pisanelli Bice