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By: Paige Irvine ’25
What is appellate advocacy? How does law school prepare students for this? What are some best practices for appellate attorneys according to state supreme court justices? Due to the generosity of Ross M. Cellino ’82 and Anna Marie Cellino ’81 the answers to these questions are found below.
This summer I interned at the Vermont State Supreme Court for the Honorable Karen Carroll. While there, I drafted appellate memoranda, entry orders, and an opinion, and observed appellate case proceedings. The State of Vermont is unique as they only have two levels of the judiciary. There is no middle appellate level. Also, every month the Vermont State Supreme Court has the rocket docket. The rocket docket was implemented in 1991 to reduce the backlog of cases before the Court. The cases selected for the rocket docket are seen virtually before a panel of three justices (as opposed to the full five justice panel) and each side receives five minutes to argue. Cases set for Term, however, follow a different set of procedures. The full five justice panel presides over each case, and the appellant and appellee both receive fifteen minutes to argue. The arguments are usually heard in-person at the courthouse, and after the attorneys are finished the justices have a thirty-minute conference to discuss the case.
After observing appellate proceedings and talking to the justice’s law clerks, the reality of appellate advocacy became clear. During a 1L student’s second semester they must usually write an appellate brief and prepare an oral argument. However, students are taught to prepare the way they would a moot court competition. In other words, most students are told they should not fidget, notes should barely be looked at and should only be two pages, and the judges are typically going to be aggressive with their multiple questions. In reality, fidgeting is completely acceptable, an attorney can bring as many notes to the stand as they want, it’s okay to pause for an uncomfortable amount of time, and the judges sometimes apologize for interrupting with a question. Additionally, a tidbit the justices stressed was civility during arguments. For example, it’s poor practice to finger point and reference opposing council. Instead, attorneys should use passive construction such as “it has been argued today.” Also, some justices prefer attorneys don’t appeal to emotion. At the trial court level, attorneys might want to appeal to emotion because the judge or the jury makes a credibility determination. However, once the case reaches the appellate level, the issue before the court is about the law. Furthermore, there are some similarities between what is taught in law school, and actual appellate practice. For example, an attorney should stop talking if a justice or judge interrupts to ask a question, and if time is up the attorney should ask permission to finish their point and conclude. These were some key takeaways this summer at the Court.
Vermont is such a beautiful state. When I wasn’t in court, I was hiking the Green Mountains, hopping on the Vermont cheese trail, tasting Vermont maple syrup, or finding new passions…like jam! I’m so thankful for this internship and all the wonderful people I met throughout it. Thank you again to the University at Buffalo School of Law Summer Public Interest Funding & Fellowship Program and Ross M. Cellino and Anna Marie Cellino for making this summer internship possible.
Name: Paige Irvine ’25
Fellowship: 2023 Ross M. Cellino ’82 & Anna Marie Cellino ’81 Summer Fellowship
Placement: Vermont State Supreme Court
Location: Montpelier, VT
One important lesson I have learned from this fellowship: “Preserve your arguments at trial.”
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