December 18, 2012 Articles

Unfamiliar Territory: Preparing for Your First Out-of-State Appeal

The rules and practices in state court vary considerably more than at the federal level.

By J. Tyler Butts

Thunk. The brief landed on the junior associate’s desk, followed quickly by several heavy binders containing thousands of pages of briefing, transcripts, and exhibits. The partner stood in the doorway.

“Good news, we just got picked to handle a new appeal. Our client won after a lengthy trial, but the appeal has raised some sensitive issues that they would like handled by an appellate specialist. You’ll be taking lead on this case, your first major appeal. Take a look through the record and tell me what you think our strategy should be.”

The partner turned to leave.

“Oh, and one more thing: This case is not pending in this state. It is currently before the appellate court of East Calabama, where I know you have never handled an appeal. Good luck.”

What do you do?

First, and most important, do not panic. I found myself in the very same situation not so long ago. I had the opportunity to work on an appeal—in a case that our client had won at trial below—from its inception through oral argument. In addition to being my first significant, start-to-finish appeal, it was also my first time handling an appeal in a jurisdiction with which I was unfamiliar. The lessons I learned during that experience will, I hope, be of some use to others who, like me, find themselves working on an appeal in an unfamiliar jurisdiction for the first time, particularly in a state court jurisdiction where the rules and practices vary considerably more than at the federal level. There may even be something in this article for more experienced practitioners who may not have ventured outside their home jurisdiction recently.

Learning the Rules
Before even looking at the record on appeal, and certainly before beginning to draft your brief, the most valuable thing you can do is to check the applicable state appellate rules and the appellate court’s website. The local rules may contain any number of requirements lurking to trip up an unwary out-of-state practitioner. The last thing you want to do is discredit yourself with a new court because of an easy-to-prevent procedural mistake.

The first section of the local rules that deserves your attention is the section dealing with the appellate court’s jurisdiction. While some states permit appeals as of right to the highest appellate court, other states restrict what cases the high court may hear. In the latter situation, an appellant may have to appeal to the high court to have its case heard before briefing on the merits begins. If that is so, carefully examine the rules so that you can frame your appeal as one that is worthy of the court’s attention. In addition, you should begin considering whether oral argument will increase your likelihood of success on appeal. Some state courts permit parties to waive oral argument; for that reason, forgoing oral argument and resting solely on the briefing may be a good strategic choice, particularly if you are representing the appellee.

Because you may not be admitted to practice in the jurisdiction in which you are handling the appeal, you will also need to review the rules on admission. Depending on the court rules and your circumstances, you may wish to apply for admission as a full member of the court or to have a current member move your admission pro hac vice.

A particularly useful resource for information relating to your new jurisdiction is the court’s website. Depending on the jurisdiction, it is likely that the court’s website contains the local rules, as well as practical information regarding the preparation of an appeal. For example, numerous state courts answer frequently asked questions or publish “how to take an appeal”-type manuals. Thus, the court’s website is a valuable starting point when you are embarking on an out-of-state appeal.

As a final note on local rules, it is worth highlighting the fact that almost every state has slightly different typeface rules for briefs, and chances are that the jurisdiction you find yourself in has different requirements than those to which you are accustomed. For example, New York requires that all briefs be written in 14-point type, preferably using Times New Roman or Courier. Just to the east, Connecticut requires that briefs be written in 12-point type, using Arial or Univers (which I did not know was actually a font). North Dakota accepts only 13-point Times New Roman. Alaska accepts 13-point Times New Roman, 12.5-point Arial, and 12-point Courier. Some courts require that footnotes be in the same size type as the main body of the brief; other courts do not. Will your argument be irreparably harmed if you accidentally use the wrong font or type size? Probably not. However, in some courts that place page limits on briefs, the use of the wrong font or type size could be viewed as an attempt to circumvent page limits and might even cause the court to reject your brief. Even if the court accepts your incorrectly formatted submission, that small mistake can take the polish off what is, in all other respects, a persuasive and strong brief. You do not want to give this new court the impression that you are sloppy or inattentive to its rules.

Writing the Brief
After you have carefully examined the record, outlined your strong and weak points, and formulated a strategy for your argument, it is time to actually buckle down and write the brief. The bulk of your brief will likely center around the decision of the lower court from which the appeal was taken. Your approach to that decision, apart from being influenced by whether you are the appellant or the appellee, is largely going to be guided by the applicable standard of review. Failure to properly identify and understand the standard of review of this new jurisdiction could have substantial and unfortunate consequences. It is also worth noting that courts differ with respect to how specifically you need to set forth the standard of review in your brief. By checking the rules first, you can make sure you are not wasting valuable pages of brief on unnecessary boilerplate.

Before I started writing my brief, I thought that all standards of review were created equal—factual findings by a lower court are treated with an abuse of discretion standard, while findings of law are reviewed de novo by an appellate court. However, there are states in which the traditional, familiar, and comfortable standards of review do not apply. For example, in the case on which I was working, the appellate court was empowered not only to question the factual findings of the lower court but also to find new facts based on the trial record and exhibits entered into evidence. Faced with that situation, I had no choice but to structure the brief differently than I would have in my home jurisdiction. The different standard of review meant that I could not just rest on the factual findings of the lower court. Instead, I had to devote a portion of the brief to reiterating, supporting, and amplifying the favorable factual findings of the lower court.

Although researching the rules and the standard of review is critical, it can be equally valuable to talk to someone who routinely practices in the jurisdiction to familiarize yourself with the more practical aspects of submitting briefs to that court. Even if no one in your office has appeared before the court regularly or recently, someone in your office may be able to point you to a colleague in that jurisdiction who has. Barring that, see if any alumni from your law school practice in that area or if any member in a professional organization that you are a part of has some helpful guidance. Belonging to an organization like the ABA’s Appellate Practice Committee provides a valuable starting point for reaching out to helpful and friendly contacts in jurisdictions around the country. It has been my experience that most lawyers welcome the opportunity to pass on war stories and advice to eager young associates.

Getting Ready for the Argument
You have reviewed the file and written a stellar brief. Lest you think your job is done, you still need to argue your case. As with writing a brief, arguing an appeal in an unfamiliar jurisdiction poses its own set of additional challenges, and in this situation, to be forewarned is to be forearmed.

One thing you are going to want to do ahead of time is to find out information about the appellate panel hearing your case. Some jurisdictions have three justices hearing each appeal; some have four, five, or seven; and some may not have a set or definitive number. Different courts across the country release information about the panel, including the identities of the justices sitting on the panel, at different times. Some courts publish the panel a few weeks or even months in advance, while others keep that information private until the day of the argument. If you are lucky enough to be appearing in a jurisdiction where you will know in advance who will be hearing the appeal, take advantage of that fact. Many, if not most, courts publish some biographical information of the justices on their website. It would certainly be helpful to know that a particular justice formerly worked as a prosecutor if you are working on a criminal appeal, or that another justice worked in-house for an insurance company if you are advancing a novel or unusual policy interpretation.

In addition, you should always, to the extent possible, go one step further with your investigation into the justices’ backgrounds by examining any recent or relevant decisions they wrote or dissented from or published. Check both your brief and your opponent’s brief to see if any of the justices played a role in a critical or on-point case. Regardless of whether those cases are helpful or harmful to your argument, it is valuable to be aware of what issues might be particularly fresh in the justices’ minds so that you can anticipate potential questions and craft appropriate answers. In addition, even if the justices on the court have not specifically addressed your issue, it is worth checking to see if they have written generally on any subject on which your appeal touches.

Although carefully researching the past written decisions of potential justices may give you some insight into their positions on certain issues, it is still a good idea to reach out to attorneys who regularly practice before that particular court. The practical insights they may have about the court you are traveling to will give you greater confidence that you will have a firm grasp on what will happen on the day of the argument. For example, if you normally practice in only one or two courts, you might take for granted the fact that the justices on those courts routinely study the briefs and record on appeal before the argument. In those courts, you will likely not be expected to provide a lengthy summary of the case’s factual and procedural history. The justices on those courts may be more likely to come to argument with pointed and critical questioning. Conversely, you may be accustomed to a relatively cold bench that allows an advocate to make his or her presentation, complete with facts and procedural history, without interrupting with questions, or you may be accustomed to a court whose justices expect a fuller explanation of the factual background. Being aware of how oral arguments are usually conducted will allow you to craft your argument appropriately.

The Argument
If your schedule permits, and if your client consents, I would recommend traveling to the jurisdiction a day in advance. Not only will that allow you plenty of cushion in the case of travel delays (caused, in my case, by remnants of Hurricane Isaac), but also you will get the opportunity to visit the court and observe other oral arguments. Watching other arguments is probably the best way to form an idea of what you can expect when it comes time for your argument. Watching them at least a day in advance will give you an opportunity to adjust your argument if necessary. If you are unable to travel to the jurisdiction to watch arguments in advance, some courts, like the West Virginia Supreme Court of Appeals, live-steam oral arguments on their websites.

On the day of the argument, I would recommend leaving yourself plenty of time to arrive at the courthouse. Although MapQuest may claim that it will take you only six minutes by car (and who knows where the new iPhone map application will send you), keep in mind that you are in an unfamiliar area and that any number of variables, including road conditions and traffic congestion, might be different from where you usually practice. In addition, although you may think that your argument time is set in stone, it may be more like an old-fashioned cattle call.

For example, for my first out-of-state appeal, I was given a schedule of all the cases that the court was to hear on that day. Arguments started at 10:00 a.m. sharp, and the court was to hear 25 cases that day. Each case was allotted between 15 and 30 minutes for oral argument. My case was 17th on the list. My basic math skills suggested that, if most arguments took the full amount of time, as was the practice in my home jurisdiction, my case would not be heard until sometime in the mid- to late afternoon. What I failed to account for was the possibility that not every case would use the full time for oral argument. In fact, none of the cases did: Some cases were submitted on the briefs without argument; some cases had only one party present; and in some cases, after only two or three minutes of argument, the advocate was abruptly cut off by the presiding justice. As a result, my case was heard well before noon. Had I not shown up to court early, and instead assumed that each case would take its allotted time, I could have missed the argument entirely.

In addition to reducing unnecessary stress and eliminating the possibility that you will accidentally miss your argument, getting to court early has the added bonus of allowing you to watch any arguments that are heard before yours, especially when you do not have the chance (or funds) to attend the day before. This gives you an opportunity to see how hot or cold a bench is feeling that day. Depending on the tone of the bench, do not be afraid to change styles or tactics if appropriate. I do not say that lightly because you have presumably practiced and grown comfortable with the flow of your argument during your preparation. However, it might become clear from watching the cases in front of you that the way you planned to present your argument, although it may have been effective in the court in which you traditionally argue, is not going to fly in front of this court.

In my case, we had been allotted 20 minutes to present our case. I had carefully plotted out how I wanted the introduction to go, how I would present the relevant case law and contract language, and how I would explain that the decision by the trial court was clearly supported by the factual findings. All that strategy was discarded when it became apparent that, no matter how much time was officially allotted, each party was lucky to get five minutes to present its case before being told, essentially, that the court had heard enough and that it was time to sit down. While the cases scheduled before mine whizzed by, I quickly rearranged the argument to emphasize the two or three really key points that I thought the court needed to understand to appreciate my position fully. Now, this scenario will not happen to all attorneys practicing in a new jurisdiction for the first time, but it highlights the importance that preparation, an understanding of the record, and an ability and willingness to be adaptable can play when you are arguing a case outside your home jurisdiction.

Arguing an appeal outside your home bailiwick can be intimidating. In addition to the normal stresses caused by traveling, you may be dealing with an unfamiliar set of rules, a different standard of review, and a different overall approach to dealing with appeals. All of these additional hurdles can be overcome with some extra preparation and research.

In the end, after months of learning the rules of the jurisdiction, familiarizing myself with the record, actually writing the brief, getting to know the justices’ biographies and case law, and talking to regular practitioners in the district, I received the best one-sentence decision an appellee can receive from an appellate court: “The judgment by the trial court is hereby affirmed.”

Keywords: litigation, appellate practice, admission pro hac vice, local rules, state appellate rules, standard of review, scheduling

J. Tyler Butts is an associate with Robinson & Cole in Hartford, Connecticut, and is a cochair of the Young Lawyers Subcommittee of the Appellate Practice Committee.

Copyright © 2012, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).