Appellate Truth

Regardless of how much you love the Langdellian approach to pedagogy, the one thing nobody ever tells a law student is that the story upon which your education relies is, more or less, a fairy tale.   Appellate Squawk airs the dirty little secret.



Trial testimony of Dr. Bag: “When the patient walked into the emergency room, he had a laceration to his leg about 3-4 inches long. He told me he and the defendant were arguing about whether A-Rod had ever played left field for the Penguins, when the defendant slashed him with a bottle opener. I cleaned out the wound, stitched him up and got his blood pressure back to normal. He went home the next day, walking, with Tylenol.”

At trial, there will be non-police witnesses who try to guild the lily, make things more horrible than they really were, but that runs the risk of having the defense rip the exaggerating scoundrel’s lying tongue from his mouth.  Police witnesses are a bit different, as they’re professionals at testifying, having been taught the art of the wiggle to hold fast to their story, without regard to anything resembling reality.

While there may be a  little gold-plating on the part of the witness, most witnesses testifying for the prosecution aren’t inclined to tell more than the truth as they believe it to be.  But once the trial is over, and the testimony set in stone, everything shifts to the lawyers to play the testimony as best they can.




DA’s brief on appeal: The victim hovered between life and death as he was rushed to the hospital, screaming in pain. His heart could have stopped at any moment. His leg nearly fell off.  For hours it was touch and go, but the surgical team bravely labored through the night. At dawn the chief surgeon, mopping his brow, announced, “By George, it’s a miracle. He’s going to make it.”


Of course, it’s not like the defense has no opportunity to challenge.


Your reply brief: What unbelievable rubbish. That wasn’t the testimony at all.

But that’s argument by lawyers.  The truth is what the court says the truth is.



The Appellate Division’s decision 6 months later:


“Defendant insists that the finding of substantial risk of death was unsupported by the  evidence because the doctor didn’t use that exact phrase. We disagree. The victim, screaming, “Don’t let me die! It’s my little girl’s birthday!” was rushed to the hospital, hovering between life and death, pursued by the machete-brandishing defendant. At one point the victim’s heart stopped and had to be replaced. At another point his leg fell off.  A team of surgeons working around the clock for 72 hours managed to restore him to life, but the victim remained in agony for weeks.  Contrary to the defendant’s stupid, time-wasting argument, there is no formal catechism that a doctor has to recite to establish substantial risk of death. Anything involving blood is clearly sufficient.”


There is no criminal defense lawyer who has done any significant appellate work who doesn’t have a story about this, the “facts” as found by the court that never happened, not even close, either in real life or at trial.  There is an appellate decision, perhaps even one that’s right on the law, premised on facts culled from a brief that flies in the face of every bit of testimony.

Yet, this is now the truth.  The Appellate Division said so, and so it must be.

This is a bit hard to wrap your head around, suggesting that whoever prepared the decision couldn’t be bothered to crack the transcript and vet the prosecution’s brief for just a wee bit of reality.  Perhaps some kid clerk, destined for greatness at Biglaw, the Academy or the bench, was charged with vetting the facts, and was either too raw or too susceptible to influence to comprehend that he was repeating a pack of lies, characterizing argument as fact.  It’s not like anyone expects busy judges to check up on such things.

It’s a killer. You bleed at trial, doing everything you can to undermine the fantasy presented by the prosecution to assure a conviction. You score some points as witnesses concede their exaggerations, allowing the jury to see the face of a person disgraced by their now-exposed deceit.  It may fall short of the truth, but the lie has been exposed to all. Well, maybe not all.

Not every appellate decision comes back this way.  If the court takes a hard look, they may well find facts that bear a reasonable resemblance to something that was said at trial.  And sometimes you have no clue what case they’re talking about, because the ‘facts” upon which the court relies don’t look anything like the evidence at any trial you’re familiar with. 

The affirmance makes the evidence look clean and clear, despite the 9 days of jury deliberations, ending only after the third Allen charge, the one where the judge threatens to sell of the jurors’ children’s body parts if they don’t reach a verdict.  Over objection.  In the appellate decision, the defendant’s guilt is so ridiculously obvious as to make the reader wonder what idiot would possibly have taken the case to trial.  What idiot, indeed.

By the time a case makes it to the Supreme Court, it’s been so utterly sanitized that it invariably strikes readers as being beyond dispute.  We may fight like dogs over the law to be applied, but the facts of the case, often set forth in a paragraph or two, despite the 7 months of trial.  There’s no room for tediously conflicting testimony that would only muddy up the deep and important thought necessary to explain the prosecution’s virtue.

Squawk’s post is, as usual, a very humorous presentation, though tainted with the undertone of frustration and exasperation of fighting one set of facts and losing another.  It doesn’t happen every time, but it happens far more often than you would think.  Ask any appellate lawyer.  Try to explain it to any appellate client.

7 comments on “Appellate Truth

  1. Rob R

    At least the 4th Circuit Court of Appeals tried to rein in the Board of Immigration Appeals in the recent case of Turkson v. Holder (case # 10-1984, decided 1/26/12.) There, the Court held that the BIA can’t blow off what the Immigration Judge decided what the facts were. The BIA has made a habit of late of deciding that the facts weren’t different from what the IJ found, even though they didn’t hear any evidence. The Fourth, God Bless ‘Em, stepped that back.

  2. REvers

    Been there, done that. More than once.

    The worst one was in a death penalty case. It still makes me want to scream when I think about it.

  3. Max Kennerly

    It’s even worse in the civil world, now that we have the dreaded “Twombly / Iqbal” standard. You can file a devastating investigative report as a complaint — which is pretty much what both Twombly and Iqbal did — and watch the court say that it is merely “plausible” but not “probable” that the sky is blue, and thereby dismiss your case without a single paper exchanged in discovery, much less a word of testimony.

    About a month ago the federal appellate court here affirmed the dismissal of the federal claims in one of my cases. The first paragraph of the Circuit Court’s opinion gets not one fact right, not even the undisputed facts.

  4. SHG

    Everything is worse in the civil world.  Because there’s so much at stake and they get no discovery and the system is so biased against civil litigants.

    And the sun’s in their eyes. And there’s a hole in their racket. And…and…well, I’m sure there are more reasons.

  5. Max Kennerly

    That’s not what I said. I clerked for a federal magistrate judge, and saw my share of habeas petitions, where 99% of defendants lose without having the merits even reached.

    But on the issue of “appellate courts making up facts,” I think civil plaintiffs are currently swallowing the most crap. Courts use Iqbal and Twombly to decide the merits of cases without any discovery or testimony, not even a denial from the defendant. That has no analogue in the criminal world.

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