[P]rocedural rules are like hills on a battlefield. Those fortunate enough to command the heights should not hesitate to make use of, and improve, their strategic position; the appellee, particularly, will benefit from showing that his opponent['s] arguments turn on facts found against him below. . . .
This said, it is equally important that you avoid placing undue emphasis on the manipulation of procedural rules and ignoring your opponent's attacks on the merits. . . . much as France's vigilance once was lulled by undue reliance on the supposedly impregnable Maginot Line. The mere invocation of verbal formulae will not suffice to rid you of an annoying appellant: you must show that the procedural rules—and the substantive rule of law . . . dictate a favorable outcome.
Irving R. Kaufman, Appellate Advocacy in the Federal Courts, 79 F.R.D. 165, 168 (1978) (at the time, Chief Judge of the U.S. Court of Appeals for the Second Circuit, explaining his maxim, "Avoid a Maginot Line mentality").
