Tips and Tactics

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Posted 08 Nov 2013 in Tips and Tactics

There are many citation styles one could use in writing briefs—The Bluebook, The Redbook, the University of Chicago Manual of Legal Citation, the California Style Manual, and so on.  One is not inherently superior to another.  If the court that will consider the brief has a required style, then that ends the matter. The fundamental rules for good citations are a very few: citations must provide everything the reader must know to locate the source; citations need to be simple, easy to understand...

Posted 05 Nov 2013 in Tips and Tactics

Many laws are enacted as a coherent whole and then divided and separated when they are codified.  Part of the statute may be sprinkled into the jurisdiction and procedure code, part into one substantive code and the rest into another.  Additionally, within one code, sections of a single statute may appear widely separated.  Two federal examples: The Chief Financial Officers Act of 1990 appears in the following United States Code titles: 5, 31, 38 and 42. The Child Abuse, Domestic Violence, Adoption...

Posted 28 Oct 2013 in Tips and Tactics

If things did not go so well in the trial court, an attorney may want to return to the books for more research for the appellate briefing.  In cases involving statutory issues, there may be relevant law that has not been codified that may make the difference.

It’s easy to assume that the code book in your hand or the sections that appear initially on the computer screen contain all the laws.  Not so.  Legislatures enact many laws that are not codified at all or are codified only in part.  Common examples include:

Posted 23 Oct 2013 in Tips and Tactics
Consider whether you are really done.  Have you answered the question(s) that were asked?  All the questions?  Are all the factual and procedural statements supported by citations to the exhibits?  Are there any omitted evidentiary points that may benefit your client as to burden of proof or presumptions in favor of your client or against your adversary?NYcourt Then follow these steps in the order that makes sense based on the nature of the brief and your work: One time, proofread just the headings or captions.  Cut and paste the headings into a separate document.  Read them apart from the brief.  Do they make sense? Are the captions parallel in structure and tense so that they flow pleasingly? Should you add subheadings to assist the reader or make other adjustments? Is there a step skipped over in the reasoning?

Posted 10 Oct 2013 in Tips and Tactics
In the “olden days,” as recently as the 1970s, briefs had to be written by hand or dictated, then typed on a typewriter.  An omission or error often meant having to retype the entire page.  The computer can be used simply as a fancy typewriter, but writing on the computer is fundamentally different in kind as well as in quality. The following comments assume the writer starts with the appellate record or an opening or opposition brief on appeal and is required to produce an opening, opposition or reply brief:

Posted 30 Sep 2013 in Tips and Tactics
As a generally applicable rule, new issues cannot be raised on appeal.  The record is silent and the issue is commonly new to the prejudice of one party.  Appellate courts have little or no difficulty in rejecting the introduction of new issues on appeal in most instances. General rules generally have exceptions, as is true here.  Although there are a number of new issues listed that may be raised on appeal, the reality is that new issues are successfully raised on appeal very rarely.[1] The new issue may be introduced by one of the litigants or, less often, by the appellate court sua sponte.[2] Most often, the successful new issues concern either the court’s own power and protection or the protection of absent or incompetent persons. In civil cases, litigants select their attorneys and normally are bound by the errors and omissions those attorneys make. Absent compelling circumstances, trial and appellate courts normally should not come to the aid of litigants.[3] Recognized exceptions that courts may apply in many jurisdictions include the following, although variation among the States and in differing circumstances prevents certainty.

Posted 26 Sep 2013 in Tips and Tactics

For any local-government attorney interested in attending a worthwhile conference focused on appellate practice, I highly recommend the Appellate Judges Education Institute 2013 Summit to be held November 14-17 in San Diego. Here's a summary of highlights of this year's meeting: Highlights will include conversations with Justice Sandra Day O’Connor, the United States Solicitor General Donald B. Verrilli, Jr. and the Chief Justice of the California Supreme Court, Tani G. Cantil-Sakauye.  The programs put together by the Council are designed to meet...

Posted 18 Sep 2013 in Tips and Tactics
NYcourtA nonparty may be vitally interested in the outcome of pending litigation or a pending appeal.  The interest may be so great and so direct as to require that the nonparty be made a party.  Such a nonparty is frequently but unfortunately spoken of as indispensable.[1]  When the interest is somewhat less, however, the nonparty may seek leave to intervene or to appear as an amicus or, alternatively, watch the litigation from the sidelines.[2]  What considerations bear on the choice of intervention and appearance as an amicus? Most significantly, an intervenor is bound as a party, whereas an amicus curiae is not a party and is not bound by the judgment.[3]  That distinction is a strong encouragement for a nonparty to proceed as an amicus curiae and retain the ability to fight again in the future, especially if the nonparty’s ability to participate in and influence the trial, appeal, and outcome as an intervenor are not entirely clear. As a party, an intervenor will have the right to appeal, denied to an amicus, but may be held liable for attorney fees and costs.[4]  An intervenor will be bound by the judgment for purposes of res judicata and collateral estoppel, while an amicus will not.

Posted 16 Sep 2013 in Tips and Tactics

Many brief writers mistakenly think of the table of contents as a nuisance that their secretaries must complete before briefs are finished. This fundamental error can profoundly affect the quality of their documents. Once a significant part of a document has been prepared, and often when a discrete segment is completed, the author should pull the table of contents that then exists to study. That table may reveal a missing argument to be added, an editorial adjustment to be made in...