Appellate Practice in Federal and State Courts

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David M. Axelrad, Contributing Experts

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“A new ‘Bible' for appellate practice.... Part treatise, part do-it-yourself manual, and part map of the road through an appeal.”
—Luther Munford, The Appellate Advocate

Appellate Practice in the Federal and State Courts has been written by America's true masters of our appellate tradition. It should find a place in every court or bar association library; and certainly in the library of a firm or lawyer whose practice brings him or her to appellate courts.”
– From the preface by the Honorable Ruggero J. Aldisert,
Senior U.S. Circuit Judge, U.S. Court of Appeals for the Third Circuit

Appellate Practice in Federal and State Courts is a complete guide to the appellate process for both practitioners and students. From preserving issues for appeal to preparing winning motions, skilled appellate lawyers provide insights on key considerations at every stage.

What questions should you ask a client before undertaking an appeal? What can “thaw” the “frozen record” from lower courts? What are the mechanics of petitioning for a writ of certiorari? This valuable new book offers step-by-step advice, strategic thinking and insights on critical issues before, during and after an appeal.

Topics covered include: the decision to appeal; preserving issues for appeal; standards of review; standing to appeal; timely filing; how courts view the “Record on Appeal”; appellate motion practice; using amicus briefs effectively; preparing persuasive appellate briefs and oral arguments; post-appeal proceedings; review by courts of last resort; the use of information technology in appellate courts; and how to develop and market an appellate practice.

Whether you are a newcomer or a veteran practitioner, whether you need guidance on appellate motion practice or on marketing an appellate practice, Appellate Practice in Federal and State Courts is an essential reference.

Book #00712; looseleaf, one volume, 768 pages; published in 2011, updated as needed; no additional charge for updates during your subscription. The online edition is updated automatically. ISBN: 978-1-58852-174-3.

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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 768
  • ISBN: 978-1-58852-174-3
  • Pub#/SKU#: 712
  • Volume(s): 1

Author Image
David M. Axelrad is a partner with the civil appellate law firm of Horvitz & Levy LLP. He is a California State Bar Certified Appellate Specialist, and has handled hundreds of civil appeals in state and federal courts in his nearly thirty years of appellate practice. Prior to joining Horvitz & Levy, Mr. Axelrad was an Assistant to the Director of the Federal Trade Commission's Bureau of Consumer Protection, and a Staff Attorney for the U.S. Court of Appeals for the Ninth Circuit. Mr. Axelrad has authored articles for legal publications, co-authored appellate practice guides for Matthew Bender and the California Continuing Education of the Bar, and lectures frequently on the appellate process. He is currently an Adjunct Professor at Loyola Law School in Los Angeles.

Author Image
  • Contributing Experts

Sarah E. Andre, Senior Associate, Nixon Peabody LLP, Los Angeles, CA

Charles E. Carpenter Jr., Carpenter Appeals and Trial Support, LLC, Columbia, SC

Paul D. Clement, Bancroft PLLC, Washington, D.C

Richard A. Derevan, Snell & Wilmer L.L.P, Costa Mesa, CA

Richard O. Faulk, Gardere Wynne Sewell LLP, Houston, TX

Erik A. Goergen, Associate, Nixon Peabody LLP, Rochester, NY

Joel Henriod, Lewis and Roca, Las Vegas, NV

Daryl L. Joseffer, King & Spalding, Washington, D.C

Mary Massaron Ross, Plunkett Cooney, Detroit, MI

Robin Meadow, Greines, Martin, Stein & Richland LLP, Los Angeles, CA

Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service, George Washington University Law School, Washington, D.C

Daniel F. Polsenberg, Lewis and Roca, Las Vegas, NV

Sidney Powell, Sidney Powell, P.C., Dallas, TX

Walter H. Sargent, Walter H. Sargent, P.C., Colorado Springs, CO

David H. Tennant, Partner, Nixon Peabody LLP, Rochester, NY

Roger D. Townsend, Alexander Dubose & Townsend LLP, Houston, TX

Paul G. Ulrich, Paul G. Ulrich, P.C., Phoenix, AZ

James N. Westwood, Stoel Rives LLP, Portland, OR

Evaluating an Appeal

§1.01 Understanding and Assessing The Task Ahead
[1] Know Your Court
[2] Know The Statistical Chances of Winning on Appeal
§1.02 Evaluating the Client and the Client's Goals
[1] What Does the Client Hope to Gain?
[2] Time and Money
[3] Is There a Match?
[4] The Engagement Letter
§1.03 Evaluating the Case
[1] Initial Ethical Considerations
[2] Should We Win?
[3] Can We Win?
[4] Evaluating the Record on Appeal
[5] Identifying Winning Issues or Facts
§1.04 The Role of Mediation/Appellate Conference Programs and Settlement
[1] Mandatory Appellate Settlement Conference Programs
[2] Voluntary Appellate Settlement Conference Programs

Preserving Issues For Appeal

§2.01 Introduction
§2.02 The Record
[1] Get the Objection in the Record
[2] Get a Ruling on the Record
[3] An Appellate Court Cannot Look Outside the Record
[4] The Proper Means to Correct or Modify the Record
§2.03 The Critical Stages For Issue Preservation
[1] Before Trial
[2] At Trial
[3] Post-Trial and Post-Judgment Motions

Preserving Issues For Appeal

§3.01 The Meaning of Standard of Review
§3.02 The Importance of Standard of Review
§3.03 Determining the Standard of Review
[1] Issue of Fact or Law?
[2] Issue of Discretion or Law?
§3.04 Applying the Standard of Review
[1] Issues of Law
[2] Issues of Fact
[3] Mixed Questions of Law and Fact
[4] Discretionary Matters
§3.05 Attacking the Adequacy of Findings and Conclusions
§3.06 Issues and Arguments Raised for the First Time on Appeal
§3.07 Harmless Error
§3.08 Final Words to Appellate Advocates

Stays and Supersedeas

§4.01 Introduction
§4.02 Automatic Stays
[1] Special Litigants
[2] During Appeal
[3] Stays During Postjudgment Proceedings
[4] Federal Courts' Use of State Provisions
§4.03 Methods of Staying Enforcement
[1] Bankruptcy
[2] Private Agreements
[3] Cash Deposit in Lieu of Bond
[4] Alternatives
[5] Supersedeas Bond
§4.04 Methods of Staying Enforcement
[1] General Right to Supersede Money Judgment
[2] Exceptions
§4.05 Amount of Supersedas Bond or Cash Deposit
[1] Money judgments
[2] Other Types of Judgments
[3] Form of Bond and Requirements for Sureties
§4.06 Discretion to Lower the Amount
[1] When the Judgment Debtor Cannot Pay
[2] When the Prevailing Party Appeals
[3] Effect of Tort Reform
§4.07 Review of Supersedeas Orders
[1] By Trial Court
[2] By Appellate Court
§4.08 Effect of Mandate
[1] Liability of Surety on Supersedeas Bond
[2] Recovery of Supersedeas-Bond Premiums as Costs
[3] Certiorari Proceedings to the Supreme Court
§4.09 Conclusion

Notice of Appeal, Standing, and Appealability

§5.01 Effect of Mandate
[1] Purpose and Effect
[2] Technical Requirements of a Notice of Appeal
[3] Timing of Filing a Notice of Appeal
[4] Cross-Appeals (Multiple Appeals)
[5] Know Your Jurisdiction
§5.02 Standing
[1] General Rule-Only "Aggrieved" Parties May Appeal
[2] Appeals by Nonparties
§5.03 Appealability
[1] General Concepts
[2] General Rule-Finality Is Required
[3] Test of Finality
[4] Multiple Claims and Parties
[5] Principal Exceptions to the Finality Doctrine

Interlocutory Appellate Review

§6.01 Collateral Orders
[1] History and Definition of Collateral Order Doctrine
[2] Elements of Doctrine
[3] Examples of Collateral Orders
[4] Pendant Appellate Jurisdiction
§6.02 Contempt
§6.03 28 U.S.C. § 1292(a)
[1] Injunctive Relief
[2] Receiverships
[3] Admiralty
§6.04 28 U.S.C. § 1292(b)
[1] Requirements for Certification of Orders
[2] Discretion of Court
[3] Timeliness of Request
§6.05 Extraordinary Writs as a Vehicle for Appeal
[1] Definition and Standards for Issuance of Writ
[2] Examples of Mandamus and Prohibition
[3] Preparation of Petition for Writ
§6.06 Class Certification
[1] History of Efforts to Appeal Class Certification
[2] Federal Rule of Civil Procedure 23(f)
[3] State Approaches to Class Certification

The Record on Appeal

§7.01 Introduction
§7.02 Preliminary Observations About the Record on Appeal
[1] The "Frozen Record from Below"
[2] Terminology: What do Courts Mean by "The Record on Appeal"?
§7.03 Federal Appellate Practice: The Record on Appeal Under the Federal Rules of Appellate Procedure
[1] The Trial Court Record
[2] The Transmission Record
[3] The Appendix/Excerpt of Record
[4] Unconventional Approaches to Presenting the Record on Appeal
[5] Correcting, Modifying or Supplementing the Record
§7.04 California State Practice Compared
[1] Reporter's Transcript
[2] Superior Court Files
§7.05 New York State Practice Compared
§7.06 Cost Considerations in Preparing the Record
§7.07 Recurring Problems in Handling the Record on Appeal
[1] Confusion About What Material is Before the Appel-late Court
[2] Reporter's Transcripts as Bottlenecks
[3] Records Under Seal
[4] Supplementation of Record
[5] Interlocutory Appeals
[6] Expedited Records for Preliminary Injunctions and Appellate Motion Practice
§7.08 Helpful Resources

Appellate Motions

§8.01 Introduction
§8.02 Motion Requirements-The Mechanics
[1] Federal Appellate Practice
[2] State Appellate Practice
§8.03 Threshold Motions to Establish or Defeat Appellate Jurisdiction
[1] Motion Seeking Permission to Appeal
[2] Motions to Dismiss
[3] Motions to Remand /Transfer to Other Courts
§8.04 Motions to Preserve Status Quo Pending Appeal
§8.05 Motions to Determine What Parties Are Before the Appellate
[1] Motions to Intervene-Generally
[2] Motions to Intervene in Agency Proceeding
[3] Motions to Substitute Party
[4] Motions to File Amicus Brief
§8.06 Motions to Combine Related Appeals
[1] Motions to Officially Join or Consolidate Appeals
[2] Motions to Assign Non-Joined/Non-Consolidated Appeals to Same Panel/Hear Argument at Same Time
§8.07 Motions to Speed Up, Shorten, Suspend, Terminate or Reinstate Appeal
[1] Motions to Expedite Appeal
[2] Motions to Shorten Appeal by Obtaining Summary Ruling
[3] Motions to Suspend Appeal
[4] Motions for Voluntary Dismissal
[5] Motions for Voluntary Dismissal
[6] Motions to Reinstate Appeal
§8.08 Motions Pertaining to Counsel
[1] Motions for Appointment of Counsel
[2] Motions to Appear Pro Hac Vice
[3] Motions to Withdraw or Substitute Counsel
§8.09 Motions Regarding Oral Argument
§8.10 Motions to Obtain Additional Time to Comply With Court Requirements
§8.11 Motions to Waive / Enforce CourtRequirements
[1] Motions to File Oversized Brief
[2] Motions to Enforce Court Requirements
§8.12 Motions Pertaining to the Content of the Record on Appeal
[1] Motions to Modify or Correct the Record
[2] Requests for Judicial Notice
[3] Motions to Seal/Unseal
§8.13 Emergency Motions
§8.14 Motions for Sanctions
§8.15 Motions to Disqualify Judge or Counsel
§8.16 Motions Regarding Fees and Costs
[1] Motions on Behalf of Indigent Client to Waive Fees and Costs
[2] Motions for Transcripts at Government Expense
[3] Motions to Recover Costs as Prevailing Party
§8.17 Post-Judgment Motions
[1] Petitions for Panel Rehearing
[2] Petitions for Rehearing En Banc
[3] Requests to Publish Unpublished Decision
[4] Requests to Depublish Decision
[5] Motions to Stay the Mandate
[6] Motions to Recall the Mandate

The Role of Amicus Briefing

§9.01 The Amicus Curiae Brief
[1] Profiling Todays Friend of the Court
[2] The Concept of a "Friend"
[3] Some Courts are Too Busy for Friendship
[4] Thoughts on Writing Briefs to Busy Courts
[5] Tactical Insights from the Rules
[6] Today's Use of Amicus Curiae Briefs
§9.02 The Purpose of an Amicus Brief-To Get What a Client Wants
§9.03 Stages of the Appeal and the Amicus Brief
[1] At the Trial Court and Intermediate Appellate Court
[2] When Seeking Certiorari or Discretionary Review
§9.04 Criteria For an Effective Amicus Curiae Brief
[1] Identity and Credibility-The Right Amicus for the Right Case
[2] The Amicus Must Be Knowledgeable on the Subject
[3] Bring New Information and Perspective
[4] Focus on the Information, Not the Parties
[5] Know What the Amicus Wants
[6] The Brief Must Be Clear and Have No Redundancy
§9.05 A Great American Amicus Brief Illustrates the Ingredients of an Effective Amicus Brief
[1] The Right Amicus for the Right Case
[2] The Amici Are Knowledgeable on the Subject
[3] The Amici Bring Information and Perspective the Parties Do Not Provide
[4] The Amici Focus on the Importance to the Amici, Not to the Parties
[5] The Amici Know What They Want
[6] The Amici Brief Was Clear and Concise and Successful
§9.06 The Long Reach of an Amicus Brief Influenced America's Greatest Case
§9.07 Growth Trend of Amicus Curiae Briefs
[1] U.S. Supreme Court
[2] Federal Circuit Courts
[3] State Appellate Courts
[4] Trial Courts
§9.08 The Current Debate about the Usefulness and Desirability of Amicus Briefs
[1] Variations Among Circuits
[2] Conclusions on Friends of the Courts Bearing Briefs

Writing Appellate Briefs

§10.01 Preface
§10.02 Preparation
[1] Confer With Trial Counsel
[2] Obtain and Evaluate the Record
[3] Identify Possible Issues
§10.03 Drafting the Brief
[1] Draft an Outline
[2] The Importance of Technique
[3] Style Considerations
[4] Drafting Considerations
§10.04 The Structure of the Brief
[1] General Considerations
[2] Table of Contents
[3] Index of Authorities
[4] Statement of the Issues
[5] Statement of Facts
[6] Summary of the Argument
[7] The Argument
[8] Summation and Prayer for Relief
§10.05 Conclusion

Oral Argument

§11.01 Introduction
§11.02 An Oral Argument is Different From a Brief
§11.03 Using the Mechanics of Preparation to Focus on Persuasion
[1] Summarizing the Argument in a Single Sentence
[2] Preparing an Outline of the Argument
§11.04 The Opening Sentences Really Matter; The Closing Words Do Not
§11.05 Questions From the Bench Are Friends, Most of the Time
§11.06 Moot Courts Are Very Valuable
[1] Timing
[2] Participants
[3] Conduct of the Moot Court
[4] Conflicting Advice
§11.07 Representing the Appellee is Both Good News and Bad News
§11.08 Rebuttal
§11.09 Some Little Things to Think About Before the Argument
§11.10 The Actual Argument
§11.11 After the Argument

Appellate Decision-Making, Rehearing, Issuance Of Man-date, and Post-Appeal Proceedings

§12.01 Introduction
§12.02 Appellate Decision-Making and Opinion Writing
[1] Pre-Decision Decisions-Motions
[2] Consensus Deliberation vs. Seriatim Announcement
[3] The Court Conference and the Written Opinions
[4] Citation of Supplemental Authority After Oral Argument
[5] Role of Staff Attorneys and Judicial Clerks in Appellate Decision Making
§12.03 Rehearing
[1] Purposes of Appellate Court Rehearing
[2] Panel Rehearing
[3] Hearing En Banc
[4] What to Expect if a Court Considers or Allows Rehearing
§12.04 The Mandate
[1] Effect, Form, and Timing of Mandate
[2] Stay of the Mandate for Filing of Petition for Certiorari
[3] Recalling the Mandate
§12.05 Post-Appeal Proceedings
[1] Appellate Costs and Attorneys' Fees
[2] Sanctions or Penalties for Misconduct During the Appeal
[3] Doctrine and Application of Law of the Case

Review by Courts of Last Resort

§13.01 What Makes Courts of Last Resort Different
[1] Discretionary Review
[2] Focus on Cases with Broad Precedential Significance
§13.02 Discretionary Review by the U.S. Supreme Court
[1] Compelling Issues for Review
[2] Vehicle Problems that May Impact Review
[3] Jurisdiction
§13.03 Petition for a Writ of Certiorari
[1] Question(s) Presented
[2] Statement of the Case
[3] Argument
[4] Amicus Curiae Participation
[5] Dispositions Other Than Plenary Review
[6] Procedural Considerations
§13.04 Seeking Review as of Right
§13.05 Opposing Review
[1] Briefs in Opposition
[2] Opposing an Appeal
[3] Cross-Petitions
§13.06 Reply and Supplemental Briefs
§13.07 After the Court Grants Review
§13.08 Differences Between the U.S. Supreme Court and State Courts of Last Resort
[1] Differences in Mandatory Jurisdiction
[2] Different Standards for Discretionary Jurisdiction
[3] Procedural Differences

Technology and the Appellate Process

§14.01 Overview-Beyond the Word Processor
§14.02 Essential Concepts
[1] Electronic Documents
[2] Portable Document Format (PDF)-The Lingua Franca
§14.03 Technology in the Appellate Law Office
[1] Working with PDFs
[2] Managing the Record Electronically
[3] Writing Tools
[4] Mobile Technology
§14.04 Technology in the Appellate Courts
[1] The Fractured State of Court Technology
[2] Connecting with the Courts Electronically
§14.05 Safeguarding Electronic Information
§14.06 The Future
§14.07 Chapter 14 Appendicies
[1] Survey of Appellate Court Electronic Filing
[2] Application to File Electronic Brief
[3] Application to Bring Computer into Courtroom

How to Build and Manage an Appellate Practice

§15.01 Introduction
§15.02 Developing Personal Competencies, Capabilities and Skillss
[1] Getting Started
[2] Being Available
[3] Becoming Visible
[4] Developing Niche Practices
§15.03 Developing the Appellate Lawyer Role
[1] The Firm's Policy Considerations
[2] Responsibilities
§15.04 Marketing and Referral Relationships
[1] Learning to Market
[2] Referral Sources
[3] Trial Counsel Relationships
[4] Working Across Firm Boundaries
§15.05 Appellate Counsel Can Improve Trial Practice Quality
[1] Involving Appellate Counsel in the Trial Process
[2] Initiating Appellate Counsels Involvement
[3] Cost Considerations
[4] Making a Record for Appeal
[5] How Appellate Counsel Can Help
§15.06 Working Relationships
[1] Relationships Between Trial and Appellate Counsel
[2] Appellate Working Relationships
[3] Consulting Relationships
[4] Other Possible Services
§15.07 Economic Considerations
[1] Planning and Budgeting
[2] Defining Competitive Markets
[3] Hiring Contract Lawyers
§15.08 Developing a Systems Approach to Appellate Practice Management
§15.09 Cooperative Efforts of Lawyers and Legal Assistants
[1] Involving Junior Lawyers and Legal Assistants
[2] The Appellate Assistants Responsibilities
§15.10 Elements of an Appellate Management System
[1] Procedural Summaries and Checklists
[2] Status Summaries
[3] The Appellate Calendar
[4] Developing an Effective Document Circulation System
§15.11 Processing Appeals
[1] Preliminary Considerations
[2] Taking an Appeal
[3] Transmittal of the Record and Docketing
[4] Briefs
[5] Oral Argument
[6] Costs and Attorneys Fees on Appeal, Motions for Reconsideration and Petitions for Review
[7] Concluding Suggestions
§15.12 Managing a Solo or Small Firm Appellate Practice
[1] Introduction
[2] Starting and Building an Appellate Practice
[3] Conclusion