APPELLATE PRACTICE TIPS

Appellate practice tips

General

  • "To write clearly and to speak clearly, you first must think clearly." —Elmer Lower, former president of ABC News.
  • Mailing the notice of appeal is not the same as filing the notice of appeal.See, e.g., State v. DuPaul, 527 N.W.2d 238, 243 (N.D. 1995).
  • Make sure you are appealing something appealable. Not every order or ruling that may be reviewed on appeal is itself appealable.
  • Effective March 1, 2003, the criminal appeal period is increased from 10 to 30 days. See, N.D.R.Crim.P. 37 with amendments; N.D.R.App.P. 4 with amendment.
  • Notice of appeal in a post-conviction proceeding must be filed within 60 days of service of notice of entry of judgment. If notice of entry is not served, the 60-day appeal period is not triggered. See N.D.R.App.P. 4(d).
  • Appeals in juvenile matters must be filed within 30 days of entry of the order or judgment appealed from. See N.D.C.C. 27-20-56.
  • Effective March 1, 2003, a cost bond on appeal is required only if ordered by the district court. See N.D.R.App.P. 7 with amendment.
  • The standard of review most often determines the outcome of the appeal. Trial judges rarely have abused their discretion. Findings of fact usually aren't clearly erroneous. Most reversals are on questions of law, which are reviewed de novo. (But clearly established precedent is seldom overruled.)
  • When your client wants to appeal as a matter of principle, tell the client how much principal it will take.
  • Be respectful, but also be self-respectful.
  • Seek to persuade, not to show how much you know.
  • You serve your client by maintaining your own credibility.
  • Omitting key facts destroys your credibility when the other side points them out.
  • Acknowledge obvious weaknesses in your case and explain why you should win anyway.
  • Tell the Court clearly why you think your position is correct.
  • Be a resource to the Court to help it understand the law and the facts.
  • Drop the hyperbole!!!
  • Cheap shots at the other side will only hurt your case.
  • "Civility is not too much to expect in a civilized society's alternative to brute force, stealth, and deception." See Jacobson v. Garaas, 2002 ND 181, 37, 652 N.W.2d 918.
  • Not every lawyer excess is justified by the mantra of zealous representation. See Jacobson v. Garaas, 2002 ND 181, 23, 652 N.W.2d 918.
  • A lawyer is not always protected by following the client's specific directions. See Jacobson v. Garaas, 2002 ND 181, 23, 652 N.W.2d 918.
  • Summary judgment can't be reversed on appeal based on what you wish you had presented in the trial court, only on what was presented as competent evidence in the trial court.
  • "Judges are not ferrets."Linrud v. Linrud, 552 N.W.2d 342 (N.D. 1996).
  • Justices don't like to have to look for the pony.
  • When you discover you are riding a dead horse, the best strategy is to dismount.
  • "The best arguments are those that tell us how you believe we can do justice and maintain the integrity of the law at the same time." - former Justice Robert Vogel
The Record
  • The appellant assumes the consequences and the risk for the failure to file a complete transcript. See Sabot v. Fargo Women's Health Organization, 500 N.W.2d 889 (N.D. 1993).
  • If no verbatim record of the evidence or proceedings at a hearing or trial was made or no transcript is available, the record may be supplemented as provided by rule.
  • If the transcript contains errors, a motion to correct the record should be made to the trial court.
  • If material considered by the trial court is not in the record, a motion to correct the record should be made to the trial court.
  • The Clerk of the Supreme Court and the Chief Deputy Clerk are lawyers specializing in appealability and Rules of Appellate Procedure.
  • Appellate rules are not hoops to jump through, but means to promote fairness and to help the Court do its job.
  • The Clerk of the Supreme Court enforces the rules and carries out the directives of the Court.
  • Comply with deadlines set by the Supreme Court Clerk's Office.
  • Do not ignore correspondence from the Supreme Court Clerk's Office requesting case information or directing specific action.

Stays

  • Seek a stay from the trial court before seeking one from the Supreme Court. See N.D.R.App.P. 8(a).
  • When seeking a stay from the Supreme Court, include the relevant parts of the record. See N.D.R.App.P. 8(a).
  • When seeking a stay from the Supreme Court, include the application made to the trial court and the trial court's denial of the stay. See N.D.R.App.P. 8(a).
  • An application for a stay must show the reasons for the relief requested and the facts relied on, and, if the facts are subject to dispute, affidavits or other sworn statements must be included. See N.D.R.App.P. 8(a).
  • When seeking a stay from the Supreme Court, discuss the factors established in Cass County Elec. Co-op., Inc. v. Wold Properties, Inc., 253 N.W.2d 323, 327 (N.D. 1977)

Briefs

  • Before writing your brief, master the record and the law.
  • Oral argument is no substitute for a good brief.
  • Raise only important issues. Trivial issues detract from important ones.
  • Only "the names and addresses of counsel representing the party on whose behalf the document is filed" are to be listed on the covers of appellate briefs; counsel for other parties are not to be listed. See N.D.R.App.P. 32.
  • The Table of Contents should include the text of each issue, not just "Issue I," "Issue II," etc. Use normal capitalization in the Table of Contents.
  • Don't type the Statement of Issues in all capital letters. Sentences in all capital letters are hard to read. Use normal capitalization.
  • Citations to the law and to the record are counted in the maximum number of words for briefs. See N.D.R.App.P. 28.
  • Don't make your brief a mystery. Tell the reader what the case is about right up front. The Statement of the Case should clearly and concisely tell what the case is about in the opening sentence. For example: "This is an appeal from summary judgment of dismissal of a negligence action, arising out of an automobile accident." "A jury found the defendant guilty of manslaughter. The defendant appeals, contending...."
  • A long brief should have a summary of the argument.
  • As much as possible, avoid referring to parties by "appellant" or "appellee." Instead, use "the designations used in the trial court or in the agency proceedings, or the actual names of parties, or descriptive terms such as: 'the employee,' 'the injured person,' 'the taxpayer,' 'the purchaser.'"
  • Generally, shortened names are better than acronyms.
  • Statements of the facts should be placed in chronological order, not in the order of testimony.
  • Present the facts in an accurate, fair, persuasive manner.
  • Don't ignore unfavorable facts. Refer to them in a way that does the least harm.
  • State the standard of review for each issue.
  • Put citations in the body of the brief, not in footnotes.
  • Refer to the appendix and the transcript by page and line number.
  • Following each sentence stating a fact, include the record reference. See N.D.R.App.P. 28(e).
  • Avoid footnotes. Don't put your citations in footnotes. Never put substantive argument in a footnote.
  • The word "clearly" is no substitute for authority or logic.
  • Arguing in favor of the position taken in a recent dissent is almost never successful
  • Always use the medium-neutral case citation (e.g., 1997 ND 103,  23) for North Dakota appellate decisions after January 1, 1997. Include a parallel primary N.W.2d citation when it becomes available. Opinions on this website are annotated with the N.W.2d citations when they become available. See The possessive "its" has no apostrophe, just as there is no apostrophe in "his," "hers," "theirs," "yours," and "ours." "It's," with the apostrophe, means "it is." "It's" can be used only when "it is" could be substituted.
  • "Good legal writing should not differ, without good reason, from ordinary well-written English."—Richard Wydick, Plain English for Lawyers.
  • Omit needless words.
  • Long sentences are confusing.
  • Use short sentences.
  • Limit yourself to one idea per sentence.
  • Avoid repetitious arguments.
  • "Always use your computer's spell check, and never trust it." —Steve Wilbers, Minneapolis Star Tribune
  • "Judges are not like pigs, hunting for truffles buried in briefs." United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).
  • "Error" is a noun."Err" is a verb .A party errs by saying "The trial court did not error . . ."
  • "Time period" is redundant.
  • "Realtor" is a trademark used by members of the National Association of Realtors. The correct term in legal writing is usually "real estate agent."
  • At the end of your brief, state clearly and concisely what specific action you are seeking from the appellate court. For example, if you are the appealing party, it's not enough to ask the court to say the trial court was wrong, you must say what you are asking the appellate court to do about it. See N.D.R.App.P. 28.
  • Although there are specific rules about the format of the brief, ease of reading is always the goal. Any combination of font size and line length resulting in an average of more than 65 characters per line is hard to read. Make your brief easy to read. See N.D.R.App.P. 32.
  • Briefs should have a binding allowing them to lie open without having to be held down. Justices often have more documents open than they have hands.
  • All electronic copies of briefs must contain in a single file all information contained in the paper brief, including cover, table of contents, and certifications, in the same order as in the paper brief. See N.D.R.App.P. 31(b)(1)(C).
  • Electronic copies of briefs may include hypertext linking within the brief (for example, from the Table of Contents to the various parts of the brief) and to Internet sources (such as opinions or rules on this website).
  • Proofread. Then proofread again.

Appendix

  • Only material actually in the trial court record may be included in the Appendix. See N.D.R.App.P. 30.
  • File an appropriate appendix. If the judge's reasoning is in the transcript, include those pages of the transcript. See N.D.R.App.P. 30(a)(5).
  • A defective appendix hurts credibility.

Mootness

  • Each party has a duty to advise the court if the appeal may have become moot, but the party may argue why the Court should still decide the case. See N.D.R.App.P. 42(c).

Oral argument

  • The primary purpose of oral argument is to answer the Court's questions.
  • Effective March 1, 2003: "Oral argument may be denied if a party fails to file a brief or if the court, upon examination of the briefs and record, decides that oral argument is unnecessary." See N.D.R.App.P. 34(a)(2) with amendment.
  • Prepare, prepare, prepare. Review the record and your cases and your opponent's cases before oral argument. Check this website for opinions issued since you filed your brief. If you didn't handle the case in the trial court, you are still expected to be familiar with the record.
  • Be prepared to discuss each case you cite and each case your opponent cites.
  • Start off oral argument on the right foot. The traditional opening is "May it please the court," not "If it please court." In North Dakota, the Supreme Court has a "Chief Justice" and "Justices," not "Associate Justices."
  • Usually, it is not helpful at oral argument to spend very much time reiterating the facts.
  • Listen carefully to the question and understand it before answering.
  • Answer the question when it is asked.
  • Don't evade.
  • Don't answer a question with a question.
  • If you don't know the answer to a question, say so.
  • If the premise of a question is wrong, politely say so.
  • If a Justice throws you a life preserver, don't bat it away.
  • Justices ask hypothetical questions because they are concerned about how the decision in your case may affect other cases. What are the limits of the principle you advocate?
  • Remember, the Justice asking the question isn't the only audience for your answer.
  • As an experiment, the Supreme Court is trying to leave the appellant and the appellee the last five minutes of their principal arguments uninterrupted by questions
  • While the Court is trying to give parties an uninterrupted final five minutes at oral argument, Justices sometimes forget or don't notice the time. It's appropriate to say, "I see my yellow light is on."
  • Oral argument is not the time to present a list of cases that could have and should have been in your brief.
  • Don't talk faster than the Justices can listen.
  • Speak up, but don't shout.
  • Stay behind the podium.
  • You don't have to use all your time at oral argument.
  • Watch the podium time lights.
  • When your time is up, your time is up. Stop.
  • Don't ask, "May I briefly conclude?"

Petitions for Rehearing

  • Petitions for Rehearing are rarely granted.
  • Don't file a petition for rehearing if the real audience is the client.
  • Petition for rehearing only when the appellate court has made a glaring error.
  • A Petition for Rehearing will not succeed by simply parroting the dissent.
  • A Petition for Rehearing merely repeating the argument previously made is pointless .See N.D.R.App.P. 40.
  • The most effective Petition for Rehearing will state with particularity the points of law or fact that the Court has in fact overlooked or misapprehended .See N.D.R.App.P. 40.

Administrative Agencies Practice Act

  • When an agency requests that the Office of Administrative Hearings designate an Administrative Law Judge to issue a final decision, and appeal is not expressly prohibited, the requesting agency may appeal. See N.D. Securities Commissioner v. Juran and Moody, Inc., 2000 ND 136.
  • Under the Administrative Agencies Practice Act, the District Court is not a trial court, but the first level of appellate court. See N.D.C.C. 28-32-19.
  • Under the Administrative Agencies Practice Act, the scope of an appeal is limited by the specifications of error filed with the notice of appeal to the District Court. See N.D.C.C. 28-32-19.
  • In Administrative Agency Practice Act appeals, the standard of review for findings of fact is very deferential: Could a reasoning mind reasonably have determined the findings were proven by the weight of the evidence from the entire record?
  • Under the Administrative Agencies Practice Act, the evidentiary record cannot be supplemented on appeal except upon remand to the agency .See N.D.C.C. 28-32-18.
  • In Administrative Agency Practice Act appeals, questions of law are fully reviewable, but deference is given to long-standing agency interpretations.

Appellate practice tips are compiled from the "Appellate practice tip of the week" through September 25, 2003.