Appellate Practice

Practice Points

What you need to know in a quick-to-read format. Find all of the Appellate Practice Committee’s practice points in this archive.

2019

Basketball Not Fundamental to Democracy
By Sanford Hausler – September 5, 2019
In finding that a basketball coach was not a public figure for purposes of a defamation claim, a Minnesota appellate court noted that "basketball is not fundamental to democracy."

Seventh Circuit Upholds Dismissal of Church Organist Discrimination Case
By Sanford Hausler – August 16, 2019
The court found that the Catholic church organist fell within the First Amendment ministerial exception.

Three Tips for New Attorneys and Law Students to Get the Most Out of Conferences
By Daniel Kessler – August 6, 2019
Conferences are a good opportunity to fill in the gaps in your legal education.

Ninth Circuit Affirms Dismissal of Lawsuit Against Former Israeli Defense Minister
By Sanford Hausler – August 6, 2019
The court held that the Torture Victims Protection Act does not abrogate common-law foreign official immunity.

Second Circuit Reverses Dismissal of Palin’s Defamation Case Against New York Times
By Sanford Hausler – August 6, 2019
The court asserted that Sarah Palin's only burden at the pleading stage was meeting the plausibility standard of Iqbal and Twombly, not the actual malice burden she will bear at trial.

California Appeals Court Upholds Trial Court Order Against Cosby after Case Settles
By Sanford Hausler – July 30, 2019
The trial court believed that Janice Dickinson could prove that Bill Cosby had authorized the release of the allegedly defamatory press releases.

Florida Overturns Marijuana Licensing Scheme
By Sanford Hausler – July 22, 2019
Florida's First District Court of Appeals has overturned Florida's state marijuana licensing scheme, as unconstitutional.

“Detained” Elephants Seek Day in Court
By Sanford Hausler – April 24, 2019
Nonhuman Rights Project asks Connecticut appellate court to hear argument that elephants should be moved from zoo to natural habitat sanctuary.

Court Orders Cardinal Sheen’s Remains Moved from NYC to Peoria
By Sanford Hausler – March 7, 2019
The bishop of Peoria is attempting to have him be declared a saint.

Right to Appeal Waived Despite Lack of Specific Sentence Recommendation
By Sanford Hausler – March 5, 2019
The Seventh Circuit held that the defendant’s lawyer “unmistakably” advocated for a below-guideline sentence.

SCOTUS: Judge’s Vote Doesn’t Count if Judge Dies Before Decision Is Issued
By Sanford Hausler – February 25, 2019
In a per curiam opinion, the Court ruled that federal judges are appointed for life, not for eternity.

Colorado Breast-Baring Ordinance Likely Unconstitutional
By Sanford Hausler – February 20, 2019
The Tenth Circuit upheld an injunction, which prohibits the City of Fort Collins, Colorado from enforcing an ordinance that prohibits women from baring their breasts, but not men.

Second Circuit: State Court Erred in Allowing Murder-for-Hire Testimony
By Sanford Hausler – February 11, 2019
Incriminating testimony from a related case violated the Sixth Amendment’s Confrontation Clause.

Defendant Awarded $1.4 Million in Costs Despite Cheaper Alternative
By Sanford Hausler – February 6, 2019
A California appeals court held that the mere fact that an alternative that would have been less expensive was available does not render the costs unreasonable or unnecessary.

SCOTUS Finds Trucker Arbitration Clauses Unenforceable
By Sanford Hausler – January 17, 2019
The Court issued its decision in New Prime Inc. v. Oliviera.

SCOTUS Considers Degrees of Force in ACCA Decision
By Sanford Hausler – January 16, 2019
Florida’s robbery statute was at issue in Stokeling v. United States.

2018

Can a Butter Knife Be a Deadly Weapon?
By Sanford Hausler – December 27, 2018
The California Supreme Court considered the question of whether a butter knife can be a deadly weapon.

Ninth Circuit Denies En Banc Rehearing of School Board Prayer Decision
By Sanford Hausler – December 27, 2018
The Ninth Circuit denied rehearing en banc from a decision holding that a school board could not begin its meetings with a prayer. Eight judges dissented from the order.

Sixth Circuit Finds Tennessee Punitive Damages Cap Unconstitutional
By Sanford Hausler – December 27, 2018
A divided Sixth Circuit panel has held that a Tennessee statutory cap on punitive damages constitutes an unconstitutional invasion of the right to trial by jury under the constitution of Tennessee.

Burglary of Temporary Structure Is Still Burglary
By Sanford Hausler – December 10, 2018
The U.S. Supreme Court clarified what qualifies as burglary under the Armed Career Criminal Act.

SCOTUS Remands Endangered Species Act “Critical Habitat” Case to Fifth Circuit
By Sanford Hausler – November 27, 2018
Weyerhaeuser raised questions about actions taken by the secretary of the interior.

SCOTUS Addresses Numerosity under ADEA
By Sanford Hausler – November 9, 2018
The U.S. Supreme Court issued its first decision in the 2018 term in Mount Lebanon Fire District v. Guido.

Who Qualifies as “Any Defendant” under the Class Action Fairness Act?
By Josh Jacobson – October 17, 2018
The Supreme Court reviews a Fourth Circuit CAFA decision despite no circuit split.

D.C. Circuit Upholds WMATA’s Ban on Religious Advertisements
By Sanford Hausler – July 31, 2018
The D.C. Circuit has upheld a guideline of the Washington Metropolitan Area Transit Authority, which provides that: “Advertisements that promote or oppose any religion, religious practice or belief are prohibited” on its buses and trains.

Art Stolen by Nazis Allowed to Be Kept by Museum Rather Than Owner
By Sanford Hausler – July 31, 2018
The Ninth Circuit has held that a California museum may retain possession of two Renaissance masterworks that had been taken by the Nazis from their owner by a forced sale during World War II.

Georgia Supreme Court's Grant Confirmed to Eleventh Circuit
By Sanford Hausler – July 31, 2018
The U.S. Senate, by a vote of 52-46, confirmed the nomination of Georgia Supreme Court justice Britt Grant to a seat on the Court of Appeals for the Eleventh Circuit.

Oldham Confirmed for Fifth Circuit
By Sanford Hausler – July 19, 2018
Andy Oldham, by a 50–49 party-line vote, was confirmed by the Senate for a seat on the Court of Appeals for the Fifth Circuit.

Scudder Confirmed for Seventh Circuit
By Sanford Hausler – May 17, 2018
Skadden Arps partner Michael Scudder has been confirmed by the Senate for a seat on the U.S. Court of Appeals for the Seventh Circuit.

Amy St. Eve Confirmed for Seventh Circuit
By Sanford Hausler – May 17, 2018
District Court Judge Amy St. Eve has been confirmed by the Senate for a seat on the U.S. Court of Appeals for the Seventh Circuit.

Fourth Circuit's Chapman Dies at 91
By Sanford Hausler– April 27, 2018
Judge Chapman had taken senior status on May 31, 1991.

Senate Confirms Duncan for Fifth Circuit
By Sanford Hausler – April 24, 2018
The Senate recently confirmed the nomination of Kyle Duncan for a seat on the Court of Appeals for the Fifth Circuit.

Eleventh Circuit's Carnes to Retire
By Sanford Hausler– March 27, 2018
Eleventh Circuit Judge Julie Carnes has advised President Trump that she will retire from the bench on June 18, 2018.

Ninth Circuit Upholds "Blurred Lines" Verdict
By Sanford Hausler – March 23, 2018
The Ninth Circuit held that the song “Blurred Lines” by Pharrell Williams, Robin Thicke, and Clifford Harris, Jr. infringed on the copyright of Martin Gaye’s “Got to Give It Up.” 

Twitter Held Not Liable for the Acts of Twitter
By Sanford Hausler – January 31, 2018
The Ninth Circuit has held that Twitter is not liable for the acts of Twitter.

Senate Confirms Stras for Eighth Circuit
By Sanford Hausler – January 30, 2018
David Stras was confirmed by a 56–42 vote of the Senate for a seat on the Court of Appeals for the Eighth Circuit, despite the fact that one of his home state senators had not returned a blue slip.

Bounds Re-Nominated for Ninth Circuit
By Sanford Hausler – January 30, 2018
Bounds had been previously nominated for the position in September 2017, but his nomination was blocked by the two Oregon senators because he had not gone through a bipartisan review process.

Fourth Circuit Reinstates Redskins Trademark
By Sanford Hausler – January 22, 2018
The Fourth Circuit has reinstated the Washington Redskins' trademark, which had been canceled by the Trademark Trial and Appeal Board as offensive to American Indians, which decision had been affirmed by the district court.

2017

Voices of Recovery Podcast Series
By ABA CoLAP – November 10, 2017
The ABA Commission on Lawyer Assistance Programs debuted the first of a series of podcasts that will address substance use disorders, mental health issues, addiction, and recovery issues. Episode 1 features attorney Laurie Besden, the Executive Director of Lawyers Concerned for Lawyers of Pennsylvania, who shares her battles with alcohol and drug addiction.

Carson Nominated for 10th Circuit
By Sanford Hausler – December 22, 2017
President Trump has nominated Joel Carson III for a position on the Court of Appeals for the Tenth Circuit.

Fed. R. App. P. 4(a)(5)(C); Overlong Extensions of Time to Appeal
By Josh Jacobson – December 8, 2017
The Supreme Court unanimously held that Fed. R. App. P. 4(a)(5)(C) is a nonjurisdictional claim-processing rule subject to forfeiture, rather than a jurisdictional statutory deadline.

Is a Separate Judgment in a Consolidated Action Appealable?
By Josh Jacobson – October 11, 2017
The U.S. Supreme Court has granted certiorari to determine whether a final judgment in one of multiple consolidated actions triggers the appeal clock for that case.

Seventh Circuit's Posner Retires
By Sanford Hausler – September 5, 2017
Judge Richard Posner, who has sat on the Seventh Circuit bench since 1981, has retired, effective September 2, 2017.

Utah Supreme Court Holds Spanking Child Not Abuse
By Brad C. Moody and Robert F. Walker – August 14, 2017
The Utah Supreme Court held that spanking a child is not abuse, absent evidence of harm to the child.

SCOTUS to Begin Electronic Filing in November
By Sanford Hausler – August 3, 2017
Electronic filing will begin at the Supreme Court beginning on November 13, 2017. This will make all new filings accessible to the public without cost.

Seventh Circuit Rules Against School District in Transgender Discrimination Case
By Sanford Hausler – June 12, 2017
The Seventh Circuit has affirmed a preliminary injunction enjoining a school district from preventing a transgender boy to use the men’s room at his high school.

SCOTUS Rules Statutory Rape Requires Victim's Age to Be Less Than 16
By Sanford Hausler – May 30, 2017
The Court issues its decision in Esquivel-Quintana v. Sessions.

Fed. R. App. P. 28(i) and 32(a)(7)(B)(i); Incorporation of Arguments; Word Limits
By Josh Jacobson – May 26, 2017
A recent Eighth Circuit opinion in the Target Corp. security-breach litigation highlights a disagreement over incorporation of arguments pursuant to Fed. R. App. P. 28(i) and the word limits imposed by Fed. R. App. P. 32(a)(7)(B)(i).

SCOTUS Holds Tribal Sovereign Immunity Does Not Extend to Individual
By Sanford Hausler – April 25, 2017
The Court held that because the defendant was the actual party in interest, not the Mohegan tribe or one of its instrumentalities, the action could go forward.

SCOTUS Reverses Kentucky Supreme Court on Arbitration Rule
By Sanford Hausler – May 15, 2017
The Kentucky rule was found to be in violation of the Federal Arbitration Act.

Seventh Circuit Holds Title VII Prohibits Sexual Orientation Discrimination
By Sanford Hausler – April 13, 2017
The Seventh Circuit, in an en banc decision, held that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation, the first federal appellate court that has so held.

Extending Your Time to Appeal under 28 U.S.C. § 2107(c) and Fed. R. App. P. 4(a)(5)(C)
By Josh Jacobson – April 5, 2017
SCOTUS recently granted certiorari in a case that raises the issue of whether Fed. R. App. P. 4(a)(5)(C) can deprive a court of appeals of jurisdiction over appeals that are statutorily timely.

Fed. R. App. P. 7 and Costs on Appeal
By Josh Jacobson – April 5, 2017
A recent Eighth Circuit decision serves to clarify what expenses may qualify as “costs on appeal” under Fed. R. App. P. 7.

California Appeals Court Finds Against Disney in Home Improvement Lawsuit
By Sanford Hausler – March 24, 2017
The court held that there were triable issues of fact as to whether Disney had waived or was estopped from asserting the time limits set out in the contract.

The Timing of Appeals from Orders Relating to Attorney Fees
By Josh Jacobson – February 3, 2017
Litigants who wait for the entry of a fees-related judgment before appealing from attorney-fees orders do so at their peril.

2016

Eighth Circuit's Bright Dies at 97
By Sanford Hausler – December 13, 2016
Judge Myron Bright of the Eighth Circuit Court of Appeals has died at the age of 97. He was the most senior serving federal appellate judge in the United States.

Supreme Court Overrules Oklahoma Death Sentence
By Sanford Hausler – November 9, 2016
The Court ruled that the Oklahoma appeals court had erred in its interpretation of the Supreme Court’s holding in Payne v. Tennessee regarding “characterizations and opinions.”

Beware Oversized Briefs
By Sanford Hausler – August 5, 2016
If you practice in the Ninth Circuit and you want to file an oversized brief, you'd better hope Judge Alex Kozinski is not on your panel.

First U.S. Secretary of Education Dies at 90
By Sanford Hausler – April 4, 2016
Shirley Hufstedler, a former federal appellate court judge who served as the nation's first education secretary, has died at the age of 90.

Kallon Nominated to Eleventh Circuit
By Sanford Hausler – February 12, 2016
President Obama has nominated District Judge Abdul Kallon to a seat on the Eleventh Circuit.

SCOTUS Rules on PLRA Fees
By Sanford Hausler – January 12, 2016
The U.S. Supreme Court issued an unanimous order in Bruce v. Samuels, a case involving prisoner litigants who qualify to file in forma pauperis.

SCOTUS Holds Only Jury Can Determine Death Penalty Factors
By Sanford Hausler – January 12, 2016
The U.S. Supreme Court decided in Hurst v. Florida that only a jury and not a judge could determine the factors necessary to impose the death penalty.