Reprinted with permission of Minnesota Lawyer ©2014
It’s nearly that time of year again, when with the best of intentions, we recommit ourselves to eat better, exercise more, stop to smell the roses, and generally make the most of life. In addition to these tried-and-true New Year’s resolutions, those of us who make our livings as appellate lawyers would be wise to also consider adding some or all of the following to our lists of 2015 resolutions.
I will communicate with trial counsel early and often.
Some of the most critical appellate guidance that we can provide must occur while the case is still before the trial court. How to best preserve issues for appeal, ensure that the testimony and documents needed for the appellate record are part of the record below, and whether and which post-trial motions to bring are all things that can have an outcome-determinative impact upon a client’s appellate chances later. In addition, appellate counsel should communicate early and often with trial counsel and the client about proactively managing the potential enforcement of judgment pending appeal.
I will read the rules.
This most basic of resolutions can be one of the easiest to forget. The relevant rules of appellate procedure have never been easier to find. If the heavy books get you down, a quick Internet search will return the applicable state or federal local rules in mere seconds. For Minnesota state appeals, make sure you are relying upon the July 1, 2014, amended rules. For federal appeals, in addition to good ol’ FRAP, don’t forget that each federal court of appeals has its own local rules, which often answer key questions about filing preferences or deviations from FRAP.
I will file notices of appeal early.
Resolve never to wait until the last minute to file your notice of appeal. This document is jurisdictional, after all, and failure to meet the deadline is fatal to appellate review of your client’s claims. We strive never to make mistakes, but mistakes can happen. Practices vary by court, but many federal courts of appeal will advise you of any deficiencies in the notice of appeal and relating filings, and the only way such deficiencies are not fatal is if you file early and thus still have time within your deadline to appeal to make any needed corrections.
I will read and understand the applicable standards of review.
The standard of review matters. A lot. Practically speaking, often it can be all that matters. Analyze potential trial errors with the applicable standards of review at the forefront of mind, to ensure that the appellate court can actually do something about whatever has your client and trial counsel up in arms. For state court appeals, consult the handy reference guide on Standards of Review published by the appellate courts. See “The Minnesota Court of Appeals Standards of Review,” updated August 2011.
I will reduce the length of briefs by 40 percent.
Appellate judges, and their law clerks, want succinct, impactful briefs. The “everything but the kitchen sink” approach to appellate briefs is ineffective and a waste of client resources. There is an infinitesimal chance that an appellate court will determine that the trial court erred as a matter of law on more than a handful of issues. Saying less but saying it better is the best approach. Pick your best one or two issues and spend your time and resources making those arguments the most powerful they can be.
I will ditch Times New Roman.
The idea that appellate courts — or any courts, for that matter — require Times New Roman is a myth. Most courts require that a font be a particular size, and some courts require the use of serif fonts (fonts with those small lines attached to the end of a stroke in a letter or symbol), but Times New Roman is one of the worst choices for readable serif fonts. It was designed for paper newsprint, with the express goal of squeezing as many letters into a line as possible. Some favorites within our firm’s Appellate Advocacy & Guidance group are Book Antiqua, Garamond, and Century Schoolbook. Read more here, and the “Requirements and Suggestions for Typography in Briefs and Other Papers,” published by the Seventh Circuit Court of Appeals, which is available here.
I will listen to the judges’ questions at oral argument and actually answer them.
Your primary goal at oral argument should be to succinctly and persuasively tell the appellate court what point of law you want the court to follow and apply, and why that is the correct outcome for the appeal. Accomplishing this in the first 60 seconds of your argument will earn you the court’s appreciation.
The opportunity to be heard through oral argument is an important part of due process in our system of justice. But remember that oral argument, when done well, is extremely helpful for the court. The judges ask the questions they do for a reason. They are testing limiting principles, trying to understand key record evidence, and analyzing their ability to act under existing precedent. Take a moment to absorb the judge’s questions, and answer those questions. One of the best ways to prepare is to identify the several hardest questions the judges may ask of you, and be prepared to tackle those questions head-on, and explain why you should still win.
Like all lists of resolutions, this one is both hopeful and challenging. We all hope we can do what we resolve to do, and we know that old habits die hard. Maybe you have a resolution or two to add to the list. We’d love to hear them. Our goal in the coming year, in addition to fulfilling all of these resolutions, is to continue to provide thoughtful commentary on the appellate process for the benefit of the lawyers, and their clients, in the appellate courts.
Happy New Year 2015, and may the appellate forces be with you!
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