Volume 1, Number 2
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Tips for Appellate Practice
There is a plethora of publications on appellate practice available to practitioners. Obviously, this article cannot summarize all of the wisdom contained in those publications. However, this article is intended to discuss some practical tips for preparing briefs to appellate courts.
Target Audience and Tailored Arguments
As a practitioner, the temptation may be to recycle a prior motion or response to a dispositive motion to use as the main substance of your brief or motion on appeal. While the overall purpose and theme of the prior arguments may stay the same, it may be necessary to approach the arguments on appeal from a different perspective.
These documents often contain extraneous information. Are all of the facts that were important at trial just as important on appeal? Even though your brief may be within the page limitation imposed by court rules, it does not mean you have to fill every page with information irrelevant to the issues raised. Be concise and carefully organize your arguments. The order of the arguments in the brief or motion should reflect a conscious decision of how you would like the arguments to be received by the reader.
Standard of Review
In addressing each of the arguments on appeal, you should outline the appropriate standard of review. The standard of review can be a sword or shield depending on which party you are. As the appellant or petitioner, by stating the standard of review you are acknowledging the hurdle that you must overcome to prevail. You may also earn credibility with the judge by acknowledging the hurdle that the appealing party must overcome. As the appellee or respondent, you are pointing out to the court the particular standard the appealing party must overcome and the difficulty that party may have in succeeding. Either way, being aware of the standard of review should help you tailor your arguments appropriately.
While appellate courts generally prefer to consider cases on the merits, it is important to not overlook technical arguments. In my experience, briefs often contain issues or arguments not preserved for appellate review.
For example, an appealing party generally may not assert an argument for the first time on appeal. Because the argument has not been raised before the trial court, you may be able to convince the appellate court to dismiss the appeal without considering the merits of the case. However, if you do not raise the argument, the appellate court will likely not search the record to determine whether an error has been preserved.
Even though a trial court may have erred, a reversal is not automatic. Federal Rule of Civil Procedure 61 mandates that courts disregard harmless errors. As the appellee or respondent, you should consider arguing that the alleged error raised by the appealing party did “not affect the substantial rights of the parties.” Fed. R. Civ. Proc. 61. This is another argument that courts will likely not raise sua sponte unless raised in your client’s brief or motion.
As practicing attorneys, we understand the need to cite to legal authorities to support our arguments. However, are you being effective with the use of your citations?
Providing a pinpoint citation (i.e., a citation to the specific page of the case which you are citing) will help the reader locate the location of the proposition you have cited in the case more expeditiously. Appellate judges, like trial court judges, have a large caseload. Anything you can do to assist them in doing their jobs more efficiently benefits you and your client.
In my experience, opposing counsel will too often cite a case without a pinpoint citation. Frequently, I cannot find the proposition for which the case is cited anywhere in the case. If you cannot, can the judge?
Parenthetical explanations are an effective way of citing to a number of cases without having to go into a detailed discussion of each case’s holding. At the same time, this is a way to make a convincing argument as to the extent of the authority supporting your argument. This is more persuasive than a string cite of six cases without parenthetical explanations because a parenthetical explanation indicates the exact proposition for which each case is cited. An example would be:
Instead of summarizing the proposition in case for which you are relying, you could also use a direct quote in parentheses rather than a parenthetical explanation.Citation to the Record
One of the most time-consuming parts of drafting a brief is providing citations to the record on appeal. In my experience, I have seen many practitioners underestimate the importance of those citations.
In jurisdictions, like Kentucky, where many trials are videotaped and no written transcript is prepared (unless done by a party at its own expense), it can be very difficult and time consuming to locate testimony in the record. Accurate citations will help a judge locate testimony quickly and add credibility to your arguments.
There are also numerous cases in which appellate courts have held it is not their responsibility to locate information in the record on appeal when no citation is provided. See, e.g., Wilson v. Jotori Dredging, Inc., 999 F.2d 370, 372 (8th Cir. 1993) (holding that appellate court would not search the record on appeal for errors when the appellant’s failure to properly cite to the record); Shankman v. Aspinook Corp., 215 F.2d 902, 904 (1st Cir. 1954) (refusing to consider the alleged error on appeal where the appellant have failed to cite to the record). As one court has so eloquently noted, “[i]t is not the job of an appellate court to go on a fishing expedition through the record to find facts favoring or disfavoring an appellant’s arguments. Rather, it is the job of a party before this court to supply in its brief relevant record cites in order that this court may properly review his arguments.” Green v. Johnson, 106 F.3d 1029, 1036 n.2 (5th Cir. 1998). Based on these holdings, it is not to your client’s advantage to underestimate the importance of having adequate and accurate citations to the record particularly when courts have deemed arguments without sufficient citations to be waived.Further Information
This review of practice pointers for appellate practice is not inclusive. For more information on this topic, you can consult two articles available, which summarize the results of surveys done in different jurisdictions:
Charles A. Bird & Webster Burke Kinnaird, Objective Analysis of Advocacy Preferences & Prevalent Mythologies in One California Appellate Court, 4 J. App. Prac. & Process 141 (2002).
David Lewis, 2003 New England Appellate Judicial Survey, 29 Vt. B.J. & L. Dig. 41 (Fall 2003).
In addition, the Kentucky Supreme Court and Court of Appeals conducted a similar survey in 2004, and an article discussing the results of that survey should be available in the first half of 2005 in the Kentucky Bar Association’s monthly publication Bench & Bar.