appellate procedure Tag

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Posted 26 Jan 2015 in Tips and Tactics

Occasionally an attorney will propose that the parties stipulate to the meaning of a relevant statute.  Such stipulations have no legal force and will be disregarded by the court.  Numerous cases so hold across the United States:   “Parties to a dispute cannot stipulate to the law and assume that the court will follow blindly an incorrect interpretation of the law, especially in an unsettled and everchanging area.” Carlile v. South Routt School Dist. RE-3J, 739 F.2d 1496, 1500 (10th Cir. 1984)   “Parties...

Posted 13 Jun 2014 in Tips and Tactics
Judges are substantially governed by rules—local rules, rules of evidence, state or federal rules for trial courts or appellate courts.FedPrac  Rules do not normally determine the merits, although rules provide the structure or framework within which the merits can be considered fairly to both sides.  Not surprisingly, judges typically know the applicable rules quite well.  The judge may have drafted the local rule specifically to address an issue arising with some frequency in that judge’s courtroom.  Or the judge may have been reversed for failure to enforce the rule. Judges expect attorneys to know the rules.  Attorneys who practice in multiple courts may need to learn and use many sets of rules.  Just do it.  The alternative is to be sorry.  Courts are not gentle with attorneys who fail to read and follow the rules, as reflected in the following, drawn from a wide variety of available examples.  In some instances, the court decision effectively sets up a malpractice action against the careless attorney.

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 12 Dec 2013 in Case Notes
In a unanimous decision released Tuesday, the U.S. Supreme Court held that federal abstention under Younger v. Harris, 401 U.S. 37 (1971) applies in only three “exceptional circumstances.”  The Court previously identified those exceptional circumstances in New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350 (NOPSI) (1989). This week, it confirmed, in Sprint Communications, Inc. v. Jacobs et al., that Younger abstention extends no further. Supreme Court The Court reaffirmed that Younger abstention is appropriate, and federal courts should defer to state courts, only when faced with:
  1.  “state criminal prosecutions,”
  2. “civil enforcement proceedings,” or
  3. “civil proceedings involving certain orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions.”
If none of those exceptional circumstances is present, the federal courts may not invoke Younger abstention. As we discussed previously, Sprint involved two separate actions that Sprint Communications, Inc. initiated against members of the Iowa Utilities Board (IUB), one pending in Iowa state court and the other in the U.S. District Court for the Southern District of Iowa.  In both actions,

Posted 25 Sep 2013 in IMLA Briefs
When is it appropriate for a federal court to decide a case that is pending in state court?Supreme Court On the Supreme Court’s docket is a case that addresses this very issue, giving the Court the chance to once again ponder the limits of the Younger abstention doctrine. That case, on appeal from the Eighth Circuit, is Sprint Communs. Co., L.P. v. Jacobs, Case No. 12-815. At issue is whether Younger abstention applies only when the underlying state proceeding is “coercive” or whether it is sometimes appropriate for federal courts to abstain from hearing cases that are “remedial” in nature.  Many cases dealing with Younger abstention have turned on that distinction. But the difference between “coercive” and “remedial” proceedings, and the way courts classify cases as one or the other, is anything but clear-cut.  Indeed, the distinction could turn on whether the government or a private party initiated the action, as “coercive” proceedings are typically described as those that are criminal or quasi-criminal in nature.

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.