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Appellate Practice in Federal and State Courts

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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.

“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.
Additional Information
Division Name LJP
Volumes 1
Product Types Books
Brand LJP
Jurisdiction National
ISBN 978-1-58852-174-3
Page Count 0
Edition 0
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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
Contributing Experts
Russell P. Austin and Glenn E. Morrical are partners of Arter & Hadden LLP, in Columbus and Cleveland, Ohio, respectively. Mr. Austin was a contributing author of The International Environment for Electronic Contracting(ABA Communications Committee, 1991) and has extensive practice experience involving all aspects of technology law, including online and Internet contract and deal representation, outsourcing, electronic commerce, consulting services, securities and investment transactions, multimedia content acquisition, system development, and software licensing. He is a member of Arter & Haddens Corporate and Securities Practice Group. From May 1997 through January 1998, Mr. Austin served as Acting General Counsel of CompuServe Corporation. Mr. Austin, A. Brian Dengler and CompuServe Senior Legal Counsel Jon Warga authored Chapter 1, Contracting in the Electronic Environment. Jon Wargas practice focuses on technology transactions, content and electronic commerce transactions and software licensing development transactions, contract representation and intellectual property issues in the online industry. Mr. Austin and Mr. Morrical authored Chapter 11, Securities Law and the Internet.Glenn E. Morricalis a partner in the Cleveland office of Arter & Hadden LLP, and is chairman of its Cleveland Corporate and Securities Practice Group. He practices primarily in the areas of securities, lending, mergers and acquisitions and general corporate matters. He has been a frequent speaker at the Cleveland Securities Law Institute and served as Chairman of the Securities Law Section of the Cleveland Bar Association in 1990-1991.A. Brian Denglerserves as Assistant General Counsel and Assistant Secretary of CompuServe Interactive Services, Inc., a subsidiary of America Online, Inc. Mr. Dengler is a former partner with the Intellectual Property and Technology Group of Arter & Hadden. He is the Vice Chair of the American Bar Associations Special Subcommittee on Information Licensing, which is reviewing the development of Article 2B of the Uniform Commercial Code. Mr. Dengler has written numerous articles for such publications as The Intellectual Property StrategistThe Internet Newsletter The Licensing Journal and the IP Litigator on issues related to technology licensing. His practice focuses on patent and trademark litigation, secured transactions related to technology, and technology licensing. Mr. Dengler co-authored Chapter 1, Contracting in the Electronic Environment.Robert W. Hamilton is a partner of Jones, Day, Reavis & Pogue in Columbus, Ohio. He represented CompuServe in Cubby v. CompuServe and has extensive experience in First Amendment and media cases, including libel, privacy, media access, copyright and trademark litigation. Mr. Hamilton authored Chapter 2, Defamation.Theodore J. Boutrous Jr is a partner in the Los Angeles office of Gibson, Dunn & Crutcher LLP. A member of the firms Management and Executive Committees and Co-Chair of the firms Media Law Practice Group, Mr. Boutrous has represented a wide range of media organizations, including the Wall Street Journal, the Washington Post, and the New York Times, in First Amendment-related and other media law matters. Mr. Boutrous,D. Jarrett Arp, and Sonja R. West authored Chapter 3, Factual Misstatements. Ms. West is an associate in the firm's Los Angeles office and an active member of the firms Media Law Practice Group. Mr. Arp is a senior associate and litigator in Gibson, Dunn & Crutcher LLPs Washington office. The authors wish to acknowledge with gratitude their former colleague, the Honorable Robert D. Sack, U.S. Circuit Judge for the Second Circuit, who was the lead author of Chapter 3 in the original edition of this treatise. Jeffrey P. Cunard is a partner in the Washington, D.C. office of Debevoise & Plimpton. Mr. Cunard was the principal draftsperson of the joint comments of the major online services in response to the preliminary draft report of the Working Group on Intellectual Property Rights of the Information Infrastructure Task Force addressing online copyright issues. He is co-author of two widely acclaimed books on international telecommunications The Telecom Mosaic: Assembling the New International Structure and From Telecommunications to Electronic Services: A Global Spectrum of Definitions, Boundary Lines and Structures.Mr. Cunard co-authored Chapter 4, Obscenity and Indecency and Chapter 6, Copyright with his partner Bruce P. Keller and associate Thomas H. Prochnow. Mr. Prochnow practices extensively in the areas of copyright, trademark and new media technologies. Mr. Cunard also co-authored Chapter 7, Trademark and Unfair Competition.Ronald L. Plesser and Sheldon Krantz are partners and Emilio W. Cividanes is of counsel at the Washington, D.C. office of Piper & Marbury L.L.P. Mr. Plesser was General Counsel of the United States Privacy Study Commission and is a key player in the development of federal and industry privacy policy, particularly that applicable to the electronic environment. Mr. Krantz, who chairs the ABA Task Force on Technology and Law Enforcement, represents communications companies in enforcement matters. Mr. Cividanes, a former counsel to the Technology and the Law Subcommittee of the United States Senate Judiciary Committee, practices extensively in the areas of privacy and information dissemination. This team authored Chapter 5, Privacy and Related Issues.Bruce P. Keller is a partner of Debevoise & Plimpton, New York, New York and head of the firms intellectual property litigation group. He is a member of the American Law Institute and was an Advisor to its Restatement of the Law (Third): Unfair Competition, and is former counsel to the International Trademark Association. Mr. Keller and Mr. Cunard were key members of the defense team representing CompuServe in the Frank Music v. CompuServe class action and of the defense team in the Tasini v. New York Times case. Mr. Keller also represents parties in numerous Internet domain name disputes. Mr. Keller, Mr. Cunard and their partner David H. Bernstein co-authored Chapter 7, Trademark and Unfair Competition Issues. Mr. Keller also co-authored Chapter 4, Obscenity and Indecency, and Chapter 6, Copyright.David H. Bernstein is a partner of Debevoise & Plimpton, New York, New York. Mr. Bernstein is chair of the Internet Subcommittee of the ABA Section of Litigation, Committee on Intellectual Property Litigation, past chair of the Committee on Unfair CompetitionTrade Identity of the ABA Section of Intellectual Property Law, and is active in the leadership of the International Trademark Association. Mr. Bernstein co-authored Chapter 7, Trademark and Unfair Competition, with Mr. Keller and Mr. Cunard.Jeffrey S. Standley is a founding partner of the intellectual property firm of Standley & Gilcrest in Columbus, Ohio. Mr. Standley has long represented CompuServe in issues regarding the industry-wide GIF (the Graphics Interchange Format) and the Unisys Welch patent dispute, as well as the Freeny patent (alleged to cover a broad range of online transactions). He represents, in addition to CompuServe, several well-known companies in intellectual property matters. Mr. Standley authored Chapter 8, Patents.Randolph J. May is a partner in the Washington, D.C. office of Sutherland, Asbill & Brennan, where he specializes in communications and multimedia law. He is co-chair of the Ratemaking Committee of the ABA Section of Administrative Law and Regulatory Practice and of the Interactive Services Committee of the Federal Communications Bar Association. He is also an adjunct professor of law at George Mason University School of Law. Mr. May has represented CompuServe in communications and regulatory matters since 1983. He authored Chapter 9, Regulatory Issues.Elliot E. Polebaum is a partner of Fried, Frank, Harris, Shriver & Jacobson, Washington, D.C. He specializes in complex civil and international litigation, including substantial intellectual property litigation and international arbitration. He previously clerked for Supreme Court Justice William J. Brennan Jr. Mr. Polebaum authored Chapter 10, Procedural Issues.Robert L. Ellis is the managing partner of Ellis & Venable LLP in Columbus, Ohio. He has practiced computer law since 1983 and Internet law since 1994. He served as a member of the Internet Policy Advisory Board (Geneva, 1996) and as chair of the Ohio State Bar Association's Digital Technology Law Committee (2003-2005). He has testified before Congress on information law issues, and is a frequent speaker and writer on the subject of digital technology law and policy. Mr. Ellis authored the revisions for Release 19 of this book.Acknowledgment is also due J. Scott Stevenson, a 1995 graduate of Capital University Law School, and Patricia Rainsford, of LJP, in recognition of their dedicated editorial support. Mr. Stevenson also assisted in the research and drafting of Chapter 1 Contracting in the Electronic Environment.
David M. Axelrad
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.

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