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.

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