Adventures in Appellate Law

So, I recently had the dubious honor of presenting oral arguments before the Federal Court of Appeals.  I say “dubious,” because how fit I was to the task remains unknown. I was both extremely thrilled and anxious to tackle this. I have some experience with appellate work, mostly the briefing parts, but this was the first time I have appeared to argue at this level.  Needless to say, it was a little nerve-wracking.  

The case involves a 1983 claim based on excessive force.  Long story short, a police officer pulled a man over, claimed the man exited the car wielding a knife, at which point the officer shot and killed the man.  The officer later admitted to planting a knife at the scene. We represent the surviving family members. Our argument is predicated on the assertion that the municipality involved failed to train and supervise the office, in violation of the decedent’s Constitutional rights, and that this failure resulted in the death.  The defendants had moved for summary judgment at the trial level and lost, at which point they appealed it.  

We were later in the docket, so I got to sit through several other cases – which gave me both the chance to see what to expect and the chance to get increasingly nervous. It was awesome to watch the judges work – they were all very well prepared and the questioning was just amazing. For my case, the other side went first.  The panel began questioning me before I even reached the podium. I had hard arguments to make based upon submission of evidence and evidentiary burdens. The legal arguments were a tad tricky, as there isn’t very much case law that fits the corners of our case facts and legal arguments. All in all, though, I think it fared well.  My fifteen minutes went by very quickly; I think there is something inherently unsatisfactory about being the appellee in that you do not get rebuttal time.  

Things I have learned? One, that I will always be extremely well-prepared on issues the judges have no interest in discussing.  Two, there is nothing more important in appellate work than a strong familiarity with precedent.  And three, I will always need to wear the highest heels I own and can stand in, otherwise I will need a box to stand on.  


10 Commandments - Random Courthouse

10 Commandments - Random Courthouse



  1. Dr. Monkey said,

    October 9, 2009 at 3:17 pm

    Congrats on this singular achievement. I’m sure you did great. Also, I love it when you use words like ‘predicated.’

  2. Stuart A. Scherer said,

    October 9, 2009 at 10:18 pm

    Tracey: congratulations, again on your 6th Circuit experience. It is something is it not? I miss the Federal System so much now that I’m not really doing much federal practice. There is something about the formality and professionalism – of all involved – not to mention the quality of the jurists, that make the state system pale in comparison. My experiences were, probably, similar. Every issue I imagined they would be interested in, or I thought important, was summarily glanced over, while they grilled me on “facts” which were (in my opinion) fairly trivial. All in all though, I would say it has been the highlight of my career. I’ve been before the Kentucky Supreme Court twice now, and the Kentucky Court of Appeals on a couple of occasions, but the SIXTH is much different story (of course I didn’t do too well in either case, but bad facts … you know the story). The point is to relish in the experience, and come home in one piece. Relax now, you’ve earned it. Have a great weekend.

  3. Andrea said,

    October 9, 2009 at 10:49 pm

    Wow, I would have loved to have been a fly on the wall. Was this your pro bono work from earlier? Not only will really high heels help you be taller, but they can really “psych” out everybody with your fierce leg muscle definition!!! Gives a new meaning to “$hit kickers”!!!!

  4. Jason said,

    October 9, 2009 at 11:23 pm

    Congrats! I’m going to link this to my little Mock Trialers to read. They always complain about being nervous; it will be good for them to know that the pros get nervous too.

  5. Anne said,

    October 10, 2009 at 6:00 am

    Congrats lady. What a proud moment.

  6. Elisa said,

    October 13, 2009 at 9:26 am

    In reading, I was nervous for you – I can’t imagine the pressure. Particularly your first go-round! Congrats!

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