Appellate Practice Tag

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Posted 03 Jun 2014 in Tips and Tactics
In Seven Sins of Appellate Brief Writing and Other Transgressions, 34 U.C.L.A.L. Rev. 431 (1986), fountain penNinth Circuit Judge Harry Pregerson identified seven deadly sins of appellate briefing:
  • Long boring briefs
  • Incoherent, unfocused, disorganized briefs
  • String cites and other poor use of authority
  • Briefs with abusive language
  • Briefs that ignore the standard of review or attempt to relitigate the facts
  • Briefs that ignore jurisdiction
  • The last minute emergency motion—usually filed at 4:00 p.m. on a Friday before a holiday

Posted 22 May 2014 in Tips and Tactics
Almost all legal positions that matter to one side in a dispute have contrary law supporting a different legal position.8122523_ab151ea98b_z  I’ve got some cases on my side and you’ve got some cases on your side.  One of the serious mistakes I can make is to focus so greatly on the good cases that I fail to distinguish and destroy your cases that hurt my position.  In Coghlan v. Starkey, 852 F.2d 806 (5th Cir. 1988), the court awarded sanctions for frivolous appeal for that mistake.  “Here, the appellate brief indicts counsel as having recognized that no authority supports the claim. Not only was there scant discussion of adverse decisions cited by the magistrate, but only two cases were even named in the brief. This is poor appellate practice and an abuse of the appellate process.” Id. at 816 (footnote omitted). What are some ways to address the cases that hurt? 

Posted 15 May 2014 in Tips and Tactics
The Bankruptcy Appellate Panel of the Ninth Circuit has adopted some materials designed to assist attorneys and litigants involved in a bankruptcy appeal before the BAP.law books Although many of the excellent materials address the peculiarities of bankruptcy appeals, Appendix I has advice for all attorneys in any court. Do’s and Don’ts for an Effective Appeal DO: 1. Know what relief you want (and why). 2. Know your audience. BAP judges generally possess a level of expertise in bankruptcy matters superior to that of most district court judges and their law clerks. 3. Understand the role of the appellate court. While its dominant role is to assess whether the trial court reached the correct result,

Posted 30 Apr 2014 in Tips and Tactics
Decisions across the U.S. identify, as one example of “bad appellate advocacy,” presenting too many issues on appeal.judicial bench The Seventh Circuit applied those words to a brief that presented “12 issues for review—many with sub-parts, for a total of 21 principal contentions. Posing so many issues ensures that each is superficially argued.” Reed-Union Corp. v. Turtle Wax, Inc., 77 F.3d 909, 911 (7th Cir. 1996). The court in Carpinet v. Mitchell, 853 A.2d 366, 371 n.2 (Pa. Super. 2004), found much to criticize, finding itself “compelled to comment on the state of this appeal.” The court found itself

Posted 22 Nov 2013 in Roundup

Yesterday, in a move with significant implications for appellate practice, the U.S. Senate modified its filibuster rules to allow a simple majority to approve individuals nominated to serve on district and appellate courts. This is likely to have a direct impact on President Obama's recent nominees to the D.C. Circuit: Patricia Millett, Nina Pillard, and Robert Wilkins. Ezra Klein provides 9 reasons why the change is a huge deal as a general matter. And Steve Klepper of the Maryland Appellate Blog suggests that the change may also have a...

Posted 14 Oct 2013 in Roundup

What Kind of Appellate Lawyer Was Justice Roberts? The American Lawyer has an excellent article with that title. Here's Roberts's approach to oral arguments: And then there were the infamous index cards. As he contemplated a case, Roberts  would write down all the possible questions he thought justices might fire at  him—dozens, if not hundreds. He'd organize them into four or five topics: A, B,  C, D, and maybe E. Then, he would shuffle them and fashion answers that would  make...

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 23 Sep 2013 in Monday Morning Review

Here's how local governments fared in the federal courts of appeals during the past week. Second Circuit Velez v. City of New York, No. 12-1965-cv (Sept. 18, 2013) (in a case where a police informant was killed and his representative brought suit against City, finding that district court properly required jury to find a "special relationship" between informant and police, and that no new trial was required). Carver v. Nassau County Interim Finance Authority, No. 13-0801 (Sept. 20, 2013) (in suit challenging wage freeze for County...

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.