2018
Splitting Oral Argument: Avoiding Misadventures in Division
By Eric Caugh – November 28, 2018
The admonition against dividing argument is almost universal.
Tried-and-True Practices for Today's Generation to Try
By Sylvia H. Walbolt – November 28, 2018
Some tips for today based on how we used to do it in the good old days.
From Appellate Practitioner to Author: So You Want to Write a Legal Novel
By Mary-Christine Sungaila – November 28, 2018
An interview with appellate lawyer and prize-winning fiction writer Cindy Tobisman.
Silly Lawyer Tricks XIV
By Tom Donlon – November 28, 2018
There are rare cases where you shake your head and say, "I don?t believe a lawyer actually did that."
Tools and Tips for Brief Writing in the Technological Age
By Katherine Rosoff and Gabriel K. Gillett – November 28, 2018
There are two aspects of brief writing where technology can be particularly helpful.
Appellate Sanctions: An Appellate Lawyer's Worst Enemy
By Sanford Hausler – August 28, 2018
All good appellate lawyers should know the rules governing appellate sanctions to protect their clients' bottom line . . . and their own.
Statutory Interpretation: Fall Reading List
By Mark Pinkert – August 28, 2018
Statutory interpretation is a battlefield; the two books reviewed here will prepare you for the fight.
Reclaiming Our Humanity: Make Your Legal Writing More Readable
By Jake Brainard – August 28, 2018
Most attorneys write like they think an attorney is supposed to sound.
Silly Lawyer Tricks XIII
By Tom Donlon – August 28, 2018
There are mistakes, and then there are really big mistakes.
Hall v. Hall or David v. Goliath?: Winning in the Supreme Court
By Steven Finell – June 19, 2018
Consolidation of multiple cases does not extinguish the cases' individual identities or merge them into a single case.
Silly Lawyer Tricks XII
By Tom Donlon – June 19, 2018
It is not a good sign when the court calls your primary argument a "puzzler."
A Case Where Everyone Wins: Pro Bono Work and a Young Lawyer's Training
By Marco A. Pulido – June 19, 2018
Pro bono legal work is one avenue for filling the access-to-justice gap.
Ten Important Considerations for Supreme Court Advocacy
By Theodore B. Olson
How one makes the most of this vital, critical, and final phase of a Supreme Court case.
May It Displease the Court
By Hon. Bridget Mary McCormack and Len Niehoff
Lessons from Supreme Court arguments that didn’t go well.
How to Confront Your Worst Fears about Appellate Oral Argument
By Sylvia H. Walbolt and Nick A. Brown – February 26, 2018
Oral argument tips from a battle-hardened appellate veteran and an appellate newcomer.
The Supreme Court's Current Cases on Jurisdictional Rules, Consolidation, and Plain Error
By Taylor H. Crabtree – February 26, 2018
In a term chock full of blockbuster cases, the Supreme Court takes up three cases that directly affect appellate litigators.
Dissents and the Executive Power: From Nazi Saboteurs to Guantanamo
By Robert A. O’Donnell and Lara Grillo – February 26, 2018
Dissents can shape future law, as seen in cases dealing with the scope of executive power in times of war.
Silly Lawyer Tricks XI
By Tom Donlon – February 26, 2018
The latest column in our continuing series on real mistakes and misdeeds by real lawyers on appeal.
Dennis Owens in Memoriam
By Sanford Hausler – February 26, 2018
A tribute to the former longtime editor of the Appellate Practice Journal.
2017
Learning the Court de Novo
By Lee R. Crain – December 7, 2017
How to prepare for any judge at oral argument.
Dark Settlements: An Ethical Constraint on Secrecy?
By Nicholas D. Stellakis – December 7, 2017
Be wary if your opponent not only tries to kill the litigation but also to bury it, along with the public record, as deeply as possible.
Proposed Amendments to the Federal Rules of Appellate Procedure
By Steven Finell – December 7, 2017
What you need to know about the pending changes.
Cleaning Up Quotations in Legal Writing
By Jason P. Steed – December 7, 2017
The inside scoop on 2017's hottest new citation tool: "cleaned up."
Silly Lawyer Tricks X
By Tom Donlon – December 7, 2017
Even an appeal on a hot-button issue with substantial public interest can be sabotaged by failure to follow basic appellate requirements.
Finding Your Calling: Pro Bono as a Path to New Practice Areas
By M.C. Sungaila – December 7, 2017
Attorneys at all levels may wish to give back and serve the underserved. But few expect to find their calling.
First-Time Issues on Appeal: May They Ever Be Heard?
By Sanford Hausler – August 31, 2017
Finding unpreserved issues need not be met with despair.
Silly Lawyer Tricks IX
By Tom Donlon – August 31, 2017
Behind a simple dismissal order in the case lies a hidden litany of mistakes by the lawyers.
Successfully Filing Your First Appellate Brief
By Amit Bindra – August 31, 2017
Tips on deadlines, page or word length, the color of the brief’s cover, and even the margins.
State Habeas and Tribal Habeas: Identical or Fraternal Twins?
By Barbara Creel and Veronica C. Gonzales-Zamora – August 31, 2017
Limits on state habeas to not apply to tribal habeas.
Hot Topics from the Section Annual Conference
By Melissa Arbus Sherry, Mark Yohalem, and Paul Cox – August 31, 2017
A summary of the three programs presented by the Appellate Practice Committee at the 2017 Section of Litigation Annual Conference in San Francisco.
The Second Lives of Powerful Dissents
By Robert A. O’Donnell and Lara Grillo – May 30, 2017
In America, even a single court may be divided against itself—and, at its most memorable times, usually is.
What You Need to Know about #AppellateTwitter
By Scott R. Larson – May 30, 2017
#AppellateTwitter can be more than a place to “nerd out” about legal writing or the law.
Silly Lawyer Tricks VIII
By Tom Donlon – May 30, 2017
Failing to understand and comply with a rule was bad enough. Telling the court of appeals that the rule did not exist was simply inexcusable.
Appeals of Merits and Fees: Does the Tail Wag the Dog?
By Bennett Evan Cooper – May 30, 2017
Despite the logic of a single appeal, most jurisdictions do not require, or even facilitate, entry of a single judgment encompassing the merits and fees.
10 Tips for Developing an Appellate Practice as a Young Lawyer
By Cheyenne Chambers, Paul Cox, and Emily McNee – May 30, 2017
Whether you’re fresh out of law school or have been practicing for a few years, an appellate clerkship is an unbeatable learning experience.
Obtaining ABA Amicus Support for Your Appeal
By Tom Donlon – March 13, 2017
The large number of cases in all courts receiving amicus briefs increases the likelihood that your opponent will have such "friends" file against you.
Going Solo: When Appellate Judges Get to Decide on Their Own
By Anna-Rose Mathieson and Ben Feuer – March 13, 2017
Having to make every decision by committee might get tiring, but appellate judges do get an occasional taste of solo power.
Expansion of Judicial Review of Arbitration Awards
By Rory D. Cosgrove and Jason W. Anderson – March 13, 2017
Some courts stress that the benefits of arbitration would be lost if parties could require review of arbitration awards on the merits.
Silly Lawyer Tricks VII
By Tom Donlon – March 13, 2017
Advocates should keep in mind that courts tend to be protective of their clerks and do not look kindly on attempts to blame them for the lawyers' mistakes.
Loving v. Commonwealth: A Powerful Lesson Turns 50
By Mark A. Flores – March 6, 2017
A review of the opinions that resulted in love prevailing over bigotry is as important today as it was the day that the Supreme Court announced the Loving decision.
2016
Volunteer Pro Bono Appeals in the Federal Courts
By Ian Barker and M.C. Sungaila – December 6, 2016
Pro bono appeals are a great way to develop your appellate experience while helping the justice system, and this article gives an overview of pro bono opportunities in the federal courts of appeals.
Guide to Volunteer Pro Bono Appeals in the Federal Courts
Your one-stop shop for information on practicing in all the federal circuits.
Amendments to the Federal Rules of Appellate Procedure
By Steven Finell – December 6, 2016
Important changes to the federal rules, coming to a courthouse near you.
Amicus Committee Becomes Permanent Standing Committee
By M.C. Sungaila and Drew Erteschik – December 6, 2016
The inception of the Amicus Committee was a response to several notable cases before the U.S. Supreme Court involving the role, function, and independence of the judiciary.
Silly Lawyer Tricks VI
By Tom Donlon – December 6, 2016
Sharing lessons from across the country with our members, reporting real mistakes made by real appellate lawyers, frequently with disastrous results for their clients.
High Deference: Appellate Review of Arbitration Rulings in Canada
By Marco P. Falco – December 6, 2016
As Canadian courts become less interventionist in reviewing arbitral awards, they increasingly align themselves with American jurisprudence.
Book Reviews: On the Encyclopaedia Britannica
By Dennis Owens – December 6, 2016
Two books take on the famous century-old Eleventh Edition.
Book Review: Thomas Jefferson: The Art of Power
By Dennis Owens – December 6, 2016
An adoring portrait of a highly conflicted man.
The Supreme Court's Summary Docket: Highlights, Trends, and Statistics
By Ryan J. Watson – August 23, 2016
A review of the High Court's summary docket reveals it issued more summary reversals and fractured opinions this term than in the past.
The Art of Evaluating an Appeal: 10 Hard-Learned Tips
By Sylvia H. Walbolt – August 23, 2016
An appellate practitioner with over 50 years of experience provides tips on evaluating whether to pursue an appeal.
What Do Appellate Clinics Do?
By Thomas Burch – August 23, 2016
Law school clinics provide benefits beyond teaching students how to practice law.
Building an Appellate Clinic
By Tillman J. Breckenridge – August 23, 2016
A clinic founder shares the challenges and successes in building a clinic that combines federal intermediate appellate court and Supreme Court practice.
Silly Lawyer Tricks V
By Tom Donlon – August 23, 2016
Sharing lessons from across the country with our members, reporting real mistakes made by real appellate lawyers, frequently with disastrous results for their clients.
Appealing Arbitration Awards and the Circuit Split over "Manifest Disregard of the Law"
By Jason P. Steed
A case currently before the Fifth Circuit has the potential to resolve the circuit split.
Silly Lawyer Tricks IV
By Tom Donlon
Sharing lessons from across the country with our members, reporting real mistakes made by real appellate lawyers, frequently with disastrous results for their clients.
Finality in the Fourth Circuit
By Joseph R. Pope
Dismissal of a complaint without prejudice for failure to plead sufficient facts is not a final, appealable order.
Book Review: Federal Appellate Procedure Manual
By Dennis Owens
The appellate bar will be highly appreciative of this excellent resource.
Book Review: Stylized: A Slightly Obsessive History of Strunk & White's The Elements of Style
By Dennis Owens
We wish that we had written this book!
Young Lawyer's Corner: What to Do about Adverse Precedent
By Sanford Hausler
There is no clear answer for the precise amount of candor due to courts.
The Legal Landscape of Class Arbitration Waivers in Consumer Contracts
By Alvaro J. Peralta
Key questions remain after Italian Colors and in light of rules proposed by the CFPB and congressional legislation.
State v. Santiago: Connecticut Highlights Quandaries of Death Penalty Repeals
By Jessica A.R. Hamilton
A watershed case in the death penalty movement may be seen as a brazen example of judicial activism.
Silly Lawyer Tricks III
By Tom Donlon
Sharing lessons from across the country with our members, reporting real mistakes made by real appellate lawyers, frequently with disastrous results for their clients.
2015
The Reply Brief: Turning "Getting the Last Word" into "Getting the Win"
By Sylvia H. Walbolt and Nick A. Brown – December 16, 2015
A few tips on how to nail the reply.
Silly Lawyer Tricks II
By Tom Donlon – December 16, 2015
Sharing lessons from across the country with our members, reporting real mistakes made by real appellate lawyers, frequently with disastrous results for their clients.
Hypothetical Statutory Jurisdiction
By Joshua S. Stillman – December 16, 2015
While it can no doubt be an efficient way to dispose of many cases, it can also lead to highly inefficient outcomes.
Ripe for Incorporation: The Seventh Amendment and the Civil Jury Trial
By Clayton LaForge – December 16, 2015
Gonzalez-Oyarzun presents several interesting questions of law, the resolution of which could assist practitioners in day-to-day litigation matters.
Effective Oral Argument and Reflections on the Roberts Court
By Stephen Feldman and Lance Curry – August 24, 2015
The Appellate Practice Committee recently presented three CLE programs discussing these topics.
Silly Lawyer Tricks
By Tom Donlon – August 24, 2015
Sharing lessons from across the country with our members, reporting real mistakes made by real appellate lawyers, frequently with disastrous results for their clients.
The Curious, Perjurious Requirements of Illinois Supreme Court Rule 12(b)(3)
By Wm. Dennis Huber – August 24, 2015
The rule requires affiants to state under penalty of perjury that they have personal knowledge of events that have not yet occurred.
Young Lawyers: Why You Should Take a Pro Bono Appeal
By Lara Escobio O'Donnell – August 24, 2015
Pro bono appeals are often overlooked as a way to give back to the community, but are worth considering for a number of reasons.
Practical and Ethical Considerations in Confessing Error on Appeal
By Sylvia H. Walbolt and Nick A. Brown – May 18, 2015
No appeal is worth endangering your professional reputation.
Tips on Effective Editing
By Ashley Burkett – May 18, 2015
Editing can be the difference between a brief that gets read and one that gets skimmed.
Emerging Issues in IP Appellate Litigation and International Commercial Arbitration
By John C. Heinbockel, Alvaro Peralta, and Jarrad Wood – May 18, 2015
Teva, Winter, and the International Chamber of Commerce 2012 Rules have brought many changes.
Book Review: Scalia: A Court of One
By Dennis Owens – May 18, 2015
This is truly a bad book.
A Possible Lifeline for Jurisdictionally Untimely Federal Appeals
By Hashim M. Mooppan – March 6, 2015
In at least 50 cases over the past 80 years, the Supreme Court has employed the remedy of equitable vacatur.
Federal Appellate Jurisdiction Still Has Its Limits
By Dorothy F. Easley – March 6, 2015
An excerpt from Dorothy F. Easley's Successful Federal Appeals in All Circuit Courts: A Practical Guide for Busy Lawyers.
Winning Your Appeal at Trial
By Thomas J. Donlon – March 6, 2015
Be the one who prepared from the very start and you will be well on the way to victory on appeal.
Rule 54(b): Have the Courts Been Getting It Wrong?
By Conor Dugan – March 6, 2015
What can be done about it?
2014
Consequences of Mootness on Appeal
By David L. Schoen
The factors the courts consider relevant in determining when the order dismissing an appeal should also vacate the previous judgment.
Don't Let Misconceptions about Appeal Bonds Hinder Your Client's Appeal
By Daniel Huckabay
It may be in the best interest of the client to provide another form of security to the court.
Young Lawyer's Corner: Those Pesky Rules
By Anthony T. Eliseuson
Ensuring familiarity and compliance with the rules is one of the important and fundamental aspects of successful appellate advocacy.
Book Review: Michigan Appellate Handbook
By Dennis Owens
A highly useful and nicely crafted practice manual.
You Can't Make That Argument! ... Yes, You Can!
By Angela Winfield
A new argument is not the same as a new claim.
The Effects of Recent Technology Developments on Appellate Practice
By Jason Patrick Kairalla and Justin S. Wales
This ain't your father's courtroom.
The Rising Role of Appellate Attorneys in U.S. Attorneys' Offices
By Chantale Fiebig
In appeals against the United States it may be necessary to retain your own appellate specialist.
Five Tips for the Persuasive Researcher
By Eric P. Voigt
Five tips for drafting a persuasive piece that will make you shine.
Book Review: Judicial Conduct and Ethics
By Dennis Owens
This book belongs on any judge's desk.
Book Review: Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law
By Dennis Owens
Don't forget to read the fine print.
Book Review: Camerado, I Give You My Hand
By Dennis Owens
Perhaps this book will open some eyes toward prison reform.
2013
Determining Finality of a Judgment Awarding Damages
By Victoria Dorfman
Where a judgment entails an award of damages, it does not always have to contain the actual sum to be final.
Cross-Appeals: Party Postures and Strategic Considerations
By Jennifer L. Swize
Young Lawyer's Corner: A primer on the many nuances of mixed appeals.
Chevron: Stronger Than Ever in City of Arlington, Texas
By Bradford S. Babbitt
Sometimes landmark decisions grow from prosaic beginnings.
UPDATE: Rule 50 and Purely Legal Arguments: A Circuit Split
By Kelli Benham Bills
The Eighth Circuit clarifies its position.
Book Review: Federal Court of Appeals Manual
By Dennis Owens
A required resource for any appellate practitioner.
Book Review: Law in American History: Volume 1
By Dennis Owens
A masterful account of the development of our country's law.
Book Review: Appellate Practice Compendium
By Dennis Owens
A set of insider's guides to all of the appellate courts in the United States.
Rule 50 and Purely Legal Arguments: A Circuit Split
By Kelli Benham Bills
Counsel should always research and consider the position of the circuit in which he or she is practicing.
Federal Circuits Remain Split on Full Faith and Credit
By Lara O'Donnell
The lack of clarity with respect to the doctrine's application continues to demand attention.
Chasing a Red Herring Through the District, Circuit, and Supreme Courts
By Alexandra Campbell-Ferrari
The specific facts of a case can matter less than making sure the court understands the controlling law and regulations.
Book Reviews: What's New in Constitutional Studies?
By Dennis Owens
Four reviews of books taking differing approaches to constitutional interpretation.
Book Review: Lincoln's Tragic Pragmatism: Lincoln, Douglas, and Moral Conflict
By Dennis Owens
A highly interesting book that some readers may find heavy-going.
Book Review: A Practitioner's Guide to Appellate Advocacy
By Joseph Esry
An excellent resource worthy of your library.
The Role of the D.C. Circuit in Administrative Law
By David M. Cooper
The particular expertise of the court is an important consideration in how cases are briefed there.
The State Solicitor General Boom
By Kevin C. Newsom
What does the modern state SG movement mean for private-sector lawyers?
Young Lawyers Corner: Getting Appellate Experience
By Seth T. Floyd
A new associate need not wait to work on appeals.
Appeals in Intra-Circuit Ancillary Proceedings
By Josh Jacobson
The circuits are clearly divided on whether such suits are appealable.
Book Review: Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It
By Dennis Owens
This may be one of the most important books published this year.
2012
"Manufactured Finality" and the Right to Appeal in Federal Courts
By Bennett Evan Cooper
The circuits are split on the test for when appellate jurisdiction can be manufactured.
Federal Circuit Appeals: Selectivity Remains the Name of the Game
By Emily J. Tait
Patent cases are tried in federal district courts across the United States, but always end up in the same place.
Tips for the First-Time Brief Writer in the U.S. Court of Appeals
By Anne Marie Lofaso and Nicholas F. Stump
Know the rules, know the law and the record, and unleash your writing beast.
Unfamiliar Territory: Preparing for Your First Out-of-State Appeal
By J. Tyler Butts
The rules and practices in state court vary considerably more than at the federal level.
Book Reviews: On Interpreting the Law
By Dennis Owens
Your reviewer owes you this disclosure: We do not hate statutes.
Appeal of Interlocutory Remand Orders in Putative Class Action Cases
By Karen S. Precella and Kelli Benham
CAFA expressly creates appellate jurisdiction to review certain orders granting or denying a remand.
Confirming Federal Judges: Perspectives, Rancor, and Potential Reform
By Stephen D. Feldman
The judiciary has 42 spots that have no prospect of being filled in the short term.
Young Lawyer's Corner: Advice on Jury Instructions and Verdict Forms
By Cristina Alonso
The importance of having clear jury instructions, objections, and rulings thereon cannot be underestimated.
Jurisdictional Divestiture: Staying a Case Pending Interlocutory Appeal
By R. Aaron Chastain
The availability of an interlocutory appeal is not always enough to maintain the potential benefits of arbitration.
Book Review: Plessy v. Ferguson: Race and Inequality in Jim Crow America
By Dennis Owens
The background of the landmark case takes center stage here.
Book Review: Courtwatchers: Eyewitness Accounts in Supreme Court History
By Dennis Owens
The stories are often delightful, illuminating the personality of a justice or exploring an aspect of court life.
The Future of Discretionary Interlocutory Review
By Pierre H. Bergeron and Bruce A. Khula
It is time to revisit the rigidity of the final-order doctrine.
Review at the U.S. International Trade Commission
By Mark A. Kressel
A first trip through commission review can be something like an American's first visit to Canada: Everything looks just a little bit different.
Using the Standard of Review to Advance Your Arguments on Appeal
By Zachary Bolitho
Don't overlook a useful tool in persuading appellate-court judges.
Getting Your Name in Print: Sometimes It Is Not a Good Thing
By Tom Donlon
Attorneys must consider that their failings could appear in a written opinion and, soon after, on an Internet site near you.
Young Lawyers: Keys to Successful Writing and Unlocking Your Talent
By Sylvia H. Walbolt
The best way to improve your writing is to subject it to the crucible of a cold set of eyes.
Book Review: Appellate Practice in Federal and State Courts
By Dennis Owens
This is a book on federal appeals with a mere nod of the head to the state courts.
Why the Appellate Mandate Matters
By Jennifer L. Swize
This refresher on the appellate mandate addresses its basic, procedural aspects, as well as the substantive consequences of its issuance.
Amicus Brief Writing for the Circuit Court: The Why and the How
By Jill M. Przybylski and Brock A. Swartzle
While no one would encourage flooding the circuit courts with amicus briefs in run-of-the-mill appeals, there are reasons for increased amicus participation in atypical circuit-court appeals.
The Hutz Brief: How to Respond to Bad Briefs
By Jeff Berger
Win over the judge with restraint, not ridicule.
Books Every Young Appellate Lawyer Should Own and Use
By Dennis Owens
Any young lawyer wishing to focus on appellate practice should check these books out.
Noteworthy Supreme Court Books
By Dennis Owens
These are not practice books; most were not written for lawyers.
How to Make Technical Briefs Understandable for Generalist Judges
By Hugh S. Balsam and Patrick C. Gallagher
With some care and effort, a lawyer can reduce even the most complicated subject matter to something that generalist judges—and their clerks—can understand.
2011
Appealing Dismissal of Federal Claims upon Remand of State Law Claims
By Lawrence A. Kasten
There has been little discussion about procedure where a district court assumes jurisdiction over an action including federal and state-law claims, dismisses the former, and then remands the latter.
Advice to Young Lawyers: Oral Argument for My Adversaries
By Brian J. Paul
The author's prior advice on brief writing was so well received that he's rounding things out with advice on oral argument.
Appellate Advocacy: A Young Attorney's Perspective
By Lara O'Donnell Grillo
The author shares some of what she has learned through experience in several years of appellate advocacy in many different environments.
When Colors Do Not Match: The Serious Business of Appellate Advocacy
By Alexander Rayskin
The words of Justice Benjamin Cardozo ring as true today as they did almost a hundred years ago when he shared them with the world. But what can they mean for the appellate practitioner?
Book Review: Ross Guberman's Point Made
By Sanford Hausler
It's one thing to pick up some tricks from a law professor who teaches legal writing; it's another to pick them up from Seth Waxman or Carter Phillips.
Should Supreme Court Arguments Be Televised?
By Stephen Feldman
Increasingly, trial lawyers and clients are calling on appellate counsel to help set a case up for appeal early in the proceedings, well before a notice of appeal is filed.
What Appellate Lawyers Should Know About Making a Trial Record
By Mary-Christine (M.C.) Sungaila
Increasingly, trial lawyers and clients are calling on appellate counsel to help set a case up for appeal early in the proceedings, well before a notice of appeal is filed.
Does "Motivated Reasoning" Help Explain How Judges Decide Cases?
By Steve Sanders
In her book, Eileen Braman asks, are judges' decisions best explained by personal inclinations or legal authority? The answer likely involves a complex interplay of both.