2Deciding to AppealCostlyTimelyCan you beat the odds
3Deciding to Appeal Expensive Court costs - required the transcribe the ENTIRE trial – will be over $Attorney’s fee – large time commitment.Review the record,prepare brief(s),present an oral argument. When giving an estimate – be liberal
4Timely May take several months or years If criminal case – postpone sentenceIf civil case – postpone payment
5It’s a long-shot Most appeals are not successful Appellate judges tend to respect lower court rulingsIn 2000, the reversal rate in federal system 9.4%
6The Big Issues for Appeal Is there a basis for reversing the trial court?Does the appellate court have jurisdiction?Was error preserved?
7Basis for Appeal Don’t file frivolous appeals Role of appellate court – ensure lower court does not make legal errors vs. debating factual disputesDoes the appeal raise an issue of law?Is the issue relatively important?
8JurisdictionAppellate courts will only consider appealable orders – final decision of a district court (28 U.S.C. § 1291)Prerequisite to jurisdictiontimely notice of appeal – within 30 days FRAP 4.Order transcript within 10 days after the notice of appeal
9Was Error Preserved?All trial court decisions are not eligible for reviewOnly decisions preserved in the trial courtPreservation of Error – issue properly raised in a timely fashion for consideration and dispositionIssue must be raised so the trial court has an opportunity to consider its meritCan’t switch horses midstream
10Recap Appellate Review = Preserved error Within the court’s appellate jurisdiction (notice of appeal & final decision)Important issue of law
11Standard of ReviewEstablishes level of deference towards trial court or juryCan be no deference, extreme deference or something in betweenStandard must be defined early in the brief – FRAP 28(a)(9)(B)Should include citation to authority
12Standard of ReviewBriefs with multiple legal issues may have more than one standard
13Standards of Review De Novo Clearly Erroneous Abuse of Discretion Substantial Evidence
14Standard of Review: De Novo Gives no deference to the trial courtThe appellate court is free to decide the case as if the trial court never issued a rulingUsed for pure questions of law.
15Issues of Law Requires de novo review What is the law in this jurisdiction on this point?The facts are irrelevantExample: Interpreting a statute; constitutional questions; motions for summary judgment.Does a minor have the capacity to enter into a binding contract?
16Standard of Review: Clearly Erroneous Substantial deference to the trial court.Requires the appellate court to affirm unless the appellate court is:Firmly convinced that a mistake has been madeOtherwise the trial court must be affirmed, even if the appellate court disagrees with the ruling.Used to review pure questions of fact
17Standard of Review: Substantial Evidence Extreme deference to the lower court.Used to review factual questions decided by a jury.Decision must stand unlessthere is no substantial evidence to support the decision,considering the evidence in the light most favorable to the verdict with all reasonable inferences deductible from the evidence to support the verdict.
18Questions of Fact Clearly erroneous or substantial evidence review What happened in the case?The rule of law is irrelevantEx: What speed was the car traveling?Questions about who did what, where and when. Questions about intent & motive.
19Sometimes it is Both Mixed Question of Law & Fact Asks whether a certain set of facts meets a particular legal standard.Ex. Does driving 65 mph in the rain on highway 42 fall below the degree of care that would be exercised by a reasonable person under those circumstances?
20Mixed Questions of Law & Fact Circuits differ in their approachMost treat as de novo or vary between de novo and clearly erroneous depending on the nature of the mixed question
21Standard of Review: Abuse of Discretion Extreme deference towards the trial courtAsks whether the trial court “abused its discretion.”Notice the term discretion suggests there is no right or wrong decision.Did the court act arbitrarily or commit a clear error of judgment.
22Discretionary Questions Requires an abuse of discretion standardUsually deal with matters of procedure and case managementCompelling discovery, imposing sanctions, amending pleadings; granting continuances or the admission of evidence.Ex: Should a party be allowed to file an amended complaint two weeks before trial?
23Different Standards of Review De novo – for pure issues of law.No deferenceAbuse of discretion – for procedural & evidentiary matters. Appellant must show an abuse of discretion.Extreme deference.Clear Error – for judge as trier of fact. Reverse factual finding only if clearly erroneous.Substantial deferenceNo substantial evidence – for jury as trier of fact. Reversed if not supported by substantial evidence.Maximum deference.
24Summary Kind of Issue Pure question of law Pure question of fact Mixed questionTrial court’s discretionApplicable StandardDe novoNo deferenceClearly erroneous or substantial evidenceSubstantial or maximum deferenceUsually de novo, but variesAbuse of DiscretionExtreme deference
25Appellate Briefs Usually 3 Brief of the appellant Brief of the appelleeAppellant’s reply brief
26References to PartiesRule 28(d) – counsel should minimize use of the terms appellant and appelleeCall the parties’ actual names or designations used by the lower court (the employee) (the employer) etc.
27Format of Briefs Fed. R. App. P. 32 32(a)(1)(A) – one-sided 32(a)(2) – CoverAppellant’s brief cover = blueAppellee’s brief cover = redAmicus/intervenor = greenReply brief = graySupplemental brief = tan
28Format continued Cover page info – Rule 32 (a)(2)(A-F) Cause number CENTERED AT THE TOPName of the courtTitle of the caseNature of the proceeding and the name of the court belowTitle of the brief – identifying the party for whom filedName, office address & phone number of counsel
29Format Continued 32(a)(3) – Binding Must be secure, allowing the brief to lie reasonably flat when openedPaper size – 8 ½ x 11 paperDouble-spacedQuotations more than 2 lines – indented & single spacedHeadings & footnotes – single spacedOne inch margins on all sides
30Font Size – Rule 32(a)(5)14 – point or largerLocal Rule for the Tenth Circuit – Rule 32.1 – 14 point preferred, but 13-point is acceptable
31What’s in it/What Order Look at the RulesFed. R. App. P. 28The appellant’s brief must contain, under appropriate headings and in the order indicated:
32Appellate Brief Corporate disclosure statement see Rule 26.1 Table of contents w/ page referencesTable of authoritiesJurisdictional statementStatement of the issues for reviewStatement of the caseStatement of factsSummary of the ArgumentThe argumentConclusion stating relief soughtCertificate of compliance See Rule 32(a)(7)
33Appellee Brief the same but under the Rules the following are optional: Jurisdictional statement; statement of the issues; statement of the case; statement of facts; standard of reviewNote: This is NOT optional under the Rutledge LRW2 Rules of Procedure!
34Corporate Disclosure Statement Required Rule 26.1Sample in supplementUnnecessary for government entitiesIdentify parent corporationsAny corporations owning more than 10% of stock
35Table of ContentsIdentifies each component of the brief and its page numberIncludes point headings and subheadings of the Argument sectionCan generate automaticallyCan update if numbers changeAdd lastInstructions in supplement
36Table of Authorities Lists the authorities cited Identifies page numbers for the citesSeparates the authorities into categoriesCases, statutes, law review articles, etc.
37Numbered pagesTable of Contents & Authorities should be numbered separately (roman numerals) i, ii, iii etcTo change page numbers insert “Next page break” and change starting point after insert page numbers
38Jurisdictional Statement Rule 28(4)(A-D), each brief must includeThe basis for the district court’s or agency’s subject matter jurisdiction, with citations to applicable statutesThe basis for the court of appeals’ jurisdiction, with citations to applicable statutesThe filing dates establishing the timeliness of the appeal andAn assertion that the appeal is from a final order or judgment
39Statement of the CaseThe Statement of the Case should briefly indicate the nature of the case, the course of proceedings, and the disposition below.In other words, tell the appellate court what the case is about, how it got here, and what already happened.
40Statement of the Issues The statement of the issues should concisely state each issue or question presented for review by the appellate court.
41Issues/Questions Presented Possible structuresUnder [relevant law], does a [certain legal status] exist when [these legally significant facts] are present?Whether the court below was correct when it held that [under the relevant law], a [certain legal status] existed when [these legally significant facts] are present?
42Issues/Question Presented Possible StructuresWhether the court below erred when it held that [this law applied] in this way [to the legally significant facts]?Whether [legal status exists[ when [these legally significant facts exists] and when [this law applies]?
43Remember AdvocacyDoes Jones’ moral obligations to perform his promise to pay Smith for past services give rise to a legal obligation in light of the serious physical injuries suffered by Smith and the immeasurable benefit he gave to Jones in saving Jones’ life?Did the trial court correctly reject a vague and uncertain “moral obligation” exception to the fundamental principle that a promise made in recognition of past services lacks consideration and therefore is unenforceable?
44Statement of FactsThis section of the brief tells the factual story. It should be limited to the facts relevant to the issues before the appellate court. The statement of the case must include references to the record, such as (R. at 4.)
45Statement of Facts Look for: All facts mentioned in the Argument All legally significant factsFavorable or unfavorableSignificant background factsEmotionally significant facts
46Remember your audience JudgesSkeptical readersInfluenced by equityConcerned about impact on future cases & policyConservativeDoesn’t like reversalResists unreasonable argumentsLaw clerksRecent graduatesInexperienced with issuesConcerned more with equities in present case & not the futureCritical reader (possible law review)Critical of details
47Summary of the Argument A succinct, clear and accurate statement of the arguments made in the body without merely repeating the argument headings.A summary of the argument is just what it says. It is the argument condensed into a few paragraphs – usually one paragraph per issue – with more meat in them than can be put into headings.
48ArgumentThe argument section of the brief should be separated by headings and sub-headings, which serve as a roadmap for the reader. These headings should be structured in a parallel fashion, particularly since they will be reproduced in the table of contents. The argument should contain a concise statement of the standard of review for each issue.
49Point Headings First, look at the elements & identify your arguments Identify the ruling you seek, asserting is correctness+ Assert your conclusion about the part of the rule that entitles your client to the ruling. ExampleThe burglary charge should be dismissed because the alleged breaking and entering occurred earlier than thirty minutes after sunset.
50SubheadingsShould have a logical relationship to headings (like elements)Negligence (subheading on duty)Death Penalty (subheading on the 8th Amendment or the 14th Amendment)
51ConclusionThe conclusion should be a short statement of the relief sought.In some circumstances, compelling summary of the major points
52Certificate of Service Assures the Court that you have provided copies of your brief to all parties (or their attorneys)
53Certificate of Compliance For briefs submitted under Rule 28.1(e)(2) or 32(a)(7)(B) – certifies that you did not exceed the word or line limit for the brief (14,000 lines max).
54CertificatesSee Local Rules for a complete listing of certificates required by your Circuit – 10th Circuit