Introduction

Appellate advocacy is fundamentally different to advocacy at first instance.

• With an appeal, factual and/legal findings have been made. An appeal is a means to upset the status quo, not an attempt to persuade a court at first instance to a certain position.
• The material to be considered on appeal is defined, subject to inclusion of further evidence. The raw material used to come to the decision and the decision itself are the subject of scrutiny. An appeal is effectively a review function, both of process and substance.
• The issues are different and more refined than at first instance. The focus is on the efficacy of the decision and the process used.
• The forum is different. The audience for counsel’s advocacy will be a senior judge or judges who will be experienced, knowledgeable and unsympathetic to unmeritorious arguments. Hyperbole and grandstanding are counterproductive. Jury techniques are redundant.
• Appeal principles and criteria are defined. Counsel should review any appeal file and frame the appeal against such principles.

The essence of appellate advocacy is to be able to persuade the appellate court that there is a flaw in the decision appealed from, such that the appellate court should intervene in the manner sought. This seminar is aimed at enhancing appellate persuasion techniques and enabling an appeal to be put forward in a way which increases its prospects of success.