YourABA: November 2013
YourABA November 2013 Masthead

How to avoid common mistakes in appellate practice

Veteran appellate attorney Mark Fulks pointed out some common mistakes lawyers make during the appeals process in a recent Sound Advice podcast, sponsored by the American Bar Association Section of Litigation. Fulks, an associate at Baker, Donelson, Bearman, Caldwell & Berkowitz PC in Johnson City, Tenn., shared how to avoid some of these errors.

One of the biggest appellate practice mistakes is "the failure to preserve and raise issues in the trial court, which in many instances, can result in waiver or forfeiture of the issue," Fulks said.

"This includes requirements that timely objections are made, timely objections are filed, that the objections and motions present the same theory of relief that is being pressed on appeal," he said. "It requires that when evidence is excluded, an offer of proof is made. It requires the introduction of exhibits, and it requires that the appellate record be properly prepared, that the necessary transcripts are obtained to give the appellate court a clear understanding of what happened in the trial court."

Fulks said lawyers also must make timely post-trial motions in order to preserve issues — in particular, the notice of appeal. "In many instances, there are ways to correct omissions after the fact, and that’s something to always keep in mind, but if they don’t get taken care of properly in the trial court, [you will want] to review the procedure for getting relief from the rules where it’s permitted and supplementing the record," he said. "At the end of the day, if the appellate court does not have a clear understanding of what happened in the trial court, it’s going to make it difficult for them to grant relief for your client."

Another common mistake is failing to review transcripts when drafting the brief, Fulks said. Even if the lawyer writing the brief was involved in the case in the trial court, he or she should not rely on notes or memory, but use the actual transcripts, he said.

In addition, lawyers must be sure to comply with the rules of appellate procedure when drafting the brief, Fulks said. Rules in various jurisdictions may involve requirements for page length and citations to authorities. "This is a very basic thing, but when mistakes are made in these regards, the work can look sloppy and unprofessional, and that is often the first impression that an appellate court has of the lawyer filing the brief," he said.

In writing the brief, some lawyers fail to draft a persuasive statement of the issue, Fulks said. "You’re not obligated to frame the issue in the manner in which the trial court framed it," he said. "You’re not obligated to frame the issue in the way that your opponent framed it. Your job as a lawyer is to respond to the other side’s argument and to address the trial court’s ruling, but to do it in the way that most persuasively advances your client’s case."

With the oral argument, lawyers often make the mistake of failing to practice and refine their presentation, Fulks said. "You should rehearse, whether it’s arguing it in front of a mirror, so you can listen and see yourself, whether it’s doing an informal presentation for one of your colleagues in the office or whether it’s calling together two or three colleagues to do a more formal moot court," he said.

Doing a moot court exercise can help lawyers get good guidance on what questions are going to be asked so they can refine their answers to those questions, Fulks said. It can also help lawyers identify the weaknesses in their case and work on ways to improve them.

"Be aware that you are in essence making a public speaking presentation, and you need to engage the court and keep the court’s interest," Fulks said. "You do not want to read your argument. Many courts have rules that forbid that. Nobody likes to be read to. You want to maintain an appearance of authority and respectful intellectual equality with the court, so the court knows that you know your case and you project confidence."

Finally, lawyers should be sure to end on a high point, he said. "If it appears that you have the court moving in your direction and you’ve answered all the questions they have, it’s time to sit down," Fulks said. "You may have 15, 20, 30 minutes to argue. You do not have to use it all."

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