Appellate advocacy is the art of persuading, through oral and written communication, a majority of the judges or justices hearing your case to rule in your client’s favor. To be effective, a mastery of the relevant law and policy is not always enough. As Judge Richard A. Posner of the Seventh Circuit Court of Appeals has explained, “a sense of the audience is the key to an advocate’s rhetorical effectiveness. The advocate must think his way into the brains of the audience.” Despite the creation of the new Court of Appeals, the Nevada Supreme Court remains the primary audience for the Nevada business community’s appeals, as matters originating in business court are presumptively retained by the state’s highest tribunal.1 Thus, an appellate practitioner representing Nevada’s businesses must place himself or herself inside the minds of the Nevada Supreme Court Justices by knowing how they vote in addition to the rationale set forth in the Court’s opinions explaining why they voted in the manner that they did.
One innovative way for an advocate to study the appellate audience is by tracking the voting relationships between Nevada’s Supreme Court Justices; think of it as a form of appellate “moneyball” or “jury research.” For example, the following charts represent the level of agreement between Nevada Supreme Court Justices in published en banc cases during the 2014 calendar year. The cells represent the percentage of time that each of the Justices agreed with each other in full, in part, or in judgment in a majority, concurring, or dissenting opinion.