How to lose an appeal in the Court of Appeal: The next generation

• Author: The Honourable David M. Brown
• Pages: 235-239

235

g Fall 2017

Hw t lse an appeal in the

Curt f Appeal:

THE NEXT GENERATION

THE HONOURABLE DAVID M. BROWN

lmost a generation has passed since Justice Marvin Catz-

man published his groundbreaking article, “The Wrong Stu:

How to Lose Appeals in the Court of Appeal.”1 In it he oered,

in seven succinct tips, surere ways to lose an appeal. His advice still

rings clear and true: (1) Always le an incomprehensible factum. (2)

Never begin at the beginning. (3) Never start with your strongest point.

(4) Never say the magic words. (5) Always make a speech for the jury. (6)

Never answer a question directly or, better still, at all. And (7) Never keep

your promises.

Several years’ experience on the Court of Appeal has demonstrated

to me the enduring legacy and power of Catzman’s seven tips for losing

an appeal. However, I have slowly realized there are other ways to suc-

cessfully drive down the road to appeal failure. This article oers some

additional losing tips that counsel can use at each stage of an appeal.

TIP #1 : APPEAL TO THE WRONG COURT

The fastest way to lose an appeal is to le your client’s appeal in the

wrong court.

1 Justice Marvin Catzman, “The Wrong Stu: How to Lose Appeals in the Court of

Appeal,” in 19:1 The Advocates’ Society Journal (Summer 2000).