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Appellate Advocacy

The Appellate Counsel at Trial

Any case worth taking to trial justifies a little forethought about a possible appeal.  What follows is a list of commonly overlooked trial matters that can make or break an appeal – and how to ensure it does not happen in your case.

* The pretrial order:  Most federal pretrial orders contain a recitation that the pleadings are amended “to conform with” the pretrial order.  This is not mere boilerplate.  Any claim or defense omitted from the pretrial order is no longer a part of the case, regardless of how often, or well, it was pled.  Conversely, any claim or defense in the pretrial order is now in the case, regardless of whether it was ever previously pled.  If the pretrial order’s statement of issues is unsatisfactory to you, you need to make a record of that fact, preferably in the order itself.

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Avoiding a Nightmare – Creating a Record to be Proud Of Introduction

Appellate practitioners can face problems in crafting a winning appeal long before the first brief is even drafted.  Technical defects and missing documents can distract from the merits, stall the momentum of a compelling argument, and doom an appeal.  In a nightmare scenario, an appellate lawyer can expend significant time and energy better expended elsewhere reconstructing the record and curing technical defects.  Both trial counsel and the appellate specialist can benefit from early consideration of how the case put in at trial will look on appeal. 

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Analyzing Cross-Appeals in Federal Court You have obtained a defense judgment in federal district court, but celebration is short lived:  Plaintiff has appealed.  Although the reversal rate for all federal appeals is less than ten percent, appellees could make a big mistake if they sit back, relax and think there is nothing to do except respond to appellant's brief.  In some circuits, failing to cross-appeal could lead to severe repercussions.  Still in others, filing an unnecessary cross-appeal may result in sanctions. See, e.g, Aventis Pharma S.A. v. Hospira, 637 F.3d 1341, 1343-44 (Fed. Cir. 2011).  To further complicate matters, the Supreme Court has indicated that cross-appeals may be jurisdictional, contrary to the traditional notion in some circuits that the requirement of cross-appeals is a flexible rule of practice.  See, e.g., Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523 (2013); El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 479 (1999). view more
Handling Appeals Without a Net: Dispelling Myths About Appellate Practice

Appellate lawyers considering solo practice often ask, "can I succeed on my own?" Fear of failure is understandable. A better question is, "how can I succeed in a solo appellate practice?" This article's purpose is to answer that question.  It provides practical advice on how to start and develop such a practice successfully. It also addresses numerous myths and concerns that arise in considering whether to do so. 

Much has changed since I started my own solo appellate practice 27 years ago. However, the fundamentals of how to grow and manage such a practice have not. There is  much more to appellate practice than writing briefs and presenting oral arguments. Hopefully, my experience and suggestions will be useful in helping you decide whether to practice appellate law on your own.

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Arbitration in Today’s Global World: The Lawyer’s Role in Obtaining Meaningful Appellate Review

Global changes underscore the need for lawyers to develop new skill sets to add value to their services and assist clients in obtaining meaningful appellate review when arbitration goes awry.

It is a truism that we live in a global world. One manifestation of globalism is the increasing use of arbitration in commercial transactions. In 2010, one in seven U.S. companies undertook at least one international arbitration. 2010 Fulbright Litigation Trends 7th Annual Survey. Not surprisingly, corporations from one jurisdiction are reluctant to use the courts of another jurisdiction as a forum for resolving their disputes. They have concerns about the impartiality of the courts, mastering the complexities of a different legal system, and finding a lawyer to represent them there. Arbitration offers an increasingly used solution to these problems.

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Leading the Dance: Drafting the Appellee’s Brief

In the 1938 Russian film "Alexander Nevsky," the eponymous military genius, recruited to protect Russia against invading Teutonic knights, is asked to propose a strategy for defense. "Defense?" scorns Nevsky. "I know nothing of defense. We shall attack!"  

When you are representing an appellee (or respondent, or real party in interest, depending on the proceeding or the forum), it's tempting to think only in terms of defense. After all, you hold the high ground. The trial court or jury decided in your client's favor. The appellant has the burden of showing reversible error. The standard of review (with few exceptions) favors the appellee. So why not let the appellant take the lead, and just meet the appellant step-for-step? That's probably why so many appellees' attorneys organize their briefs as simple responses to the appellant's opening brief. They adopt the same issues the appellant frames.   They organize their arguments in the same order as that in the opening brief. Some even adopt the appellant's statement of the case, fact statement, and standard of review by reference.

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For Whom the Court Rule Tolls

Any appellate lawyer practicing in the federal courts is keenly aware of the fundamental requirement of subject matter jurisdiction. A timely notice of appeal is a prerequisite to an appellate court's jurisdiction and, absent an extension of time to file an appeal provided by the district court, a federal appellate court is without discretion to review an untimely appeal. Indeed, under 28 U.S.C. § 1291, a timely notice of appeal is a mandatory and jurisdictional prerequisite which a circuit court can neither waive nor extend. Thus, as appellate lawyers we carefully calendar dates of entry for final judgments and corresponding due dates for notices of appeal, while making note of due dates for any postjudgment motions which otherwise toll the time to file an appeal. 

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The Effective Amicus Curiae Brief: Making an Impact as a Friend of the Court Amicus curiae briefs provide an important opportunity – indeed, often the only opportunity – for non-parties to participate in appeals that may affect their interests in some way. If done well, amicus briefs can be highly influential. As one commentator observed, it is a misconception that "[amicus briefs] are at best only icing on the cake. In reality, they are often the cake itself." Bruce J. Ennis, Effective Amicus Briefs, 33 Cath. U. L. Rev. 603, 603 (Spring 1984). view more

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