SPU #3

Appellate Practice & Procedure

Class #3:

Handling an Appeal—The Decision to

Appeal and Preliminary Matters

presented by

D. Todd Smithhttp://texasappellatelawblog.com

for

Solo Practice University™

Overview of Today’s Topics

Helping the client decide whether to appeal•Cost

•Likelihood of success

•Ethical and other issues

Matters preliminary to appeal•Jurisdictional issues/what kind of appeal?

•Notice of appeal

•Timetables

•Docketing in the appellate court

•Appellate record

The Decision to Appeal

Scenarios: Client has decided to appeal and wants to hire you

Client is unsure about appeal and needs help deciding

Cost

Client’s first question: “What is this going to cost me?”

Depends on the case, fee structure, and experience•Hourly rate or flat/blended fee

•Contingent fee in limited circumstances

•Who is doing the work?

•With experience comes efficiency

•Best to give a range with disclaimers

•Protect yourself with a substantial retainer

Likelihood of Success

Client’s second question: “What are my chances?”

Written evaluation can be a useful tool•Handle matter in phases: (1) evaluation; and (2) actual appeal

•Contains client’s costs while lawyer assesses merits

•Allows both lawyer and client a good “out” if evaluation is unfavorable

Factors to use in evaluation•Standard of review

•Identify the issues

•Statistical chances of changing/holding onto outcome

•Again, best to give a range

Ethical and Other Issues

Must have a good faith basis for appeal•At a minimum, argue for modification or extension of existing law

•Otherwise, sanctions may be imposed against lawyer and/or client

Must sometimes advise client against appeal•Frivolous

•Prospects for success low when compared to likely cost

•Possibility of making bad law (niche practice area or industry client)

Use good judgment and put client’s interest first

Preliminary Matters

Mechanics of what must be done before writing a brief

Jurisdictional Issues

Determine which appellate court would hear the case•May depend on level of original court

•Otherwise, usually statutory based on locale

•Check the web for ready resources such as maps or lists of counties covered

Confirm that the court has jurisdiction over the proceeding•Interlocutory orders: statutory interlocutory appeal or mandamus?

•Final judgments: generally appealable, but good to confirm any limits on

appellate court’s jurisdiction (i.e., amount in controversy or subject matter)

Notice of Appeal

In many jurisdictions, the instrument by which appeal is

perfected

Important to comply precisely with rules governing what it

must contain, payment of fees, etc. Could be jurisdictional.

Some jurisdictions may treat an appeal bond as the

perfecting instrument

Sample Notice of Appeal

Timetables

Counsel must appreciate appellate timetables and effect

Calculate precise date the notice of appeal is due and

confirm where it must be filed (usually trial court)

Project other initial deadlines, particularly if jurisdictional•In some states, counsel are responsible for ensuring record is filed

•Good idea to calendar tentative due dates (yours and opposition’s) for

workload management purposes

Docketing

May need to send copy of notice of appeal to appellate court and pay

docketing fee (varies by jurisdiction)

Appellate courts generally send a letter confirming that case has been

docketed

Once perfected and docketed, counsel generally deals only with

appellate court

The appellate clerk is your friend

Appellate Record

The record of what went on the trial court

Terminology varies•“Transcript”

•“Clerk’s record” and “reporter’s record”

•Or just “record”

Important to ensure record is complete•If incomplete, appellate court may not be able to decide issues on merits

•To ensure completeness, talk to trial counsel, review trial counsel’s pleadings

index, and review clerk’s docket sheet

Appellate Record Samples

Appellate Record Samples

Appellate Record Samples

Questions?

“Stop by” during office hours

Participate in the official study group

Visit the Appellate Discussion Lounge

Next Time . . .

Appellate Practice & Procedure

Class #4:

Handling an Appeal—Preparing Briefs

(Part I)

presented by

D. Todd Smithhttp://texasappellatelawblog.com

for

Solo Practice University™