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American Bar Association

Appellate Practice


The Supreme Court's Summary Docket: Highlights, Trends, and Statistics

By Ryan J. Watson

A review of the High Court's summary docket reveals it issued more summary reversals and fractured opinions this term than in the past.

The Art of Evaluating an Appeal: 10 Hard-Learned Tips

By Sylvia H. Walbolt

An appellate practitioner with over 50 years of experience provides tips on evaluating whether to pursue an appeal.

What Do Appellate Clinics Do?

By Thomas Burch

Law school clinics provide benefits beyond teaching students how to practice law.

Building an Appellate Clinic

By Tillman J. Breckenridge

A clinic founder shares the challenges and successes in building a clinic that combines federal intermediate appellate court and Supreme Court practice.

Silly Lawyer Tricks V

By Tom Donlon

Sharing lessons from across the country with our members, reporting real mistakes made by real appellate lawyers, frequently with disastrous results for their clients.

Appealing Arbitration Awards and the Circuit Split over "Manifest Disregard of the Law"

By Jason P. Steed

A case currently before the Fifth Circuit has the potential to resolve the circuit split.

Silly Lawyer Tricks IV

By Tom Donlon

Sharing lessons from across the country with our members, reporting real mistakes made by real appellate lawyers, frequently with disastrous results for their clients.

Finality in the Fourth Circuit

By Joseph R. Pope

Dismissal of a complaint without prejudice for failure to plead sufficient facts is not a final, appealable order.

Book Review: Federal Appellate Procedure Manual

By Dennis Owens

The appellate bar will be highly appreciative of this excellent resource.

Book Review: Stylized: A Slightly Obsessive History of Strunk & White's The Elements of Style

By Dennis Owens

We wish that we had written this book!

Young Lawyer's Corner: What to Do about Adverse Precedent

By Sanford Hausler

There is no clear answer for the precise amount of candor due to courts.

The Legal Landscape of Class Arbitration Waivers in Consumer Contracts

By Alvaro J. Peralta

Key questions remain after Italian Colors and in light of rules proposed by the CFPB and congressional legislation.

State v. Santiago: Connecticut Highlights Quandaries of Death Penalty Repeals

By Jessica A.R. Hamilton

A watershed case in the death penalty movement may be seen as a brazen example of judicial activism.

Silly Lawyer Tricks III

By Tom Donlon

Sharing lessons from across the country with our members, reporting real mistakes made by real appellate lawyers, frequently with disastrous results for their clients.

The Path to the Bench: Interviews with Women Appellate Judges

By M.C. Sungaila

Aspire to the bench? Read about the paths these judges have taken.

The Reply Brief: Turning "Getting the Last Word" into "Getting the Win"

By Sylvia H. Walbolt and Nick A. Brown

A few tips on how to nail the reply.

Silly Lawyer Tricks II

By Tom Donlon

Sharing lessons from across the country with our members, reporting real mistakes made by real appellate lawyers, frequently with disastrous results for their clients.

Hypothetical Statutory Jurisdiction

By Joshua S. Stillman

While it can no doubt be an efficient way to dispose of many cases, it can also lead to highly inefficient outcomes.

Ripe for Incorporation: The Seventh Amendment and the Civil Jury Trial

By Clayton LaForge

Gonzalez-Oyarzun presents several interesting questions of law, the resolution of which could assist practitioners in day-to-day litigation matters.

Oral Argument: Facing the Challenge and Embracing the Opportunity

By Margaret Grignon

The key to a successful oral argument is preparation.

Effective Oral Argument and Reflections on the Roberts Court

By Stephen Feldman and Lance Curry

The Appellate Practice Committee recently presented three CLE programs discussing these topics.

Silly Lawyer Tricks

By Tom Donlon

Sharing lessons from across the country with our members, reporting real mistakes made by real appellate lawyers, frequently with disastrous results for their clients.

The Curious, Perjurious Requirements of Illinois Supreme Court Rule 12(b)(3)

By Wm. Dennis Huber

The rule requires affiants to state under penalty of perjury that they have personal knowledge of events that have not yet occurred.

Young Lawyers: Why You Should Take a Pro Bono Appeal

By Lara Escobio O'Donnell

Pro bono appeals are often overlooked as a way to give back to the community, but are worth considering for a number of reasons.

Practical and Ethical Considerations in Confessing Error on Appeal

By Sylvia H. Walbolt and Nick A. Brown

No appeal is worth endangering your professional reputation.

Tips on Effective Editing

By Ashley Burkett

Editing can be the difference between a brief that gets read and one that gets skimmed.

Emerging Issues in IP Appellate Litigation and International Commercial Arbitration

By John C. Heinbockel, Alvaro Peralta, and Jarrad Wood

Teva, Winter, and the International Chamber of Commerce 2012 Rules have brought many changes.

Book Review: Scalia: A Court of One

By Dennis Owens

This is truly a bad book.

Building a Successful Solo Appellate Practice

By Julia Pendery

Embrace the freedom of solo practice and enjoy the ride.

A Possible Lifeline for Jurisdictionally Untimely Federal Appeals

By Hashim M. Mooppan

In at least 50 cases over the past 80 years, the Supreme Court has employed the remedy of equitable vacatur.

Federal Appellate Jurisdiction Still Has Its Limits

By Dorothy F. Easley

An excerpt from Dorothy F. Easley's Successful Federal Appeals in All Circuit Courts: A Practical Guide for Busy Lawyers.

Winning Your Appeal at Trial

By Thomas J. Donlon

Be the one who prepared from the very start and you will be well on the way to victory on appeal.

Rule 54(b): Have the Courts Been Getting It Wrong?

By Conor Dugan

What can be done about it?

Young Lawyer's Corner: Building an Appellate Practice in a Large-Firm Setting

By Linda Coberly

Good business judgment is essential to building a successful law practice, whether in appellate litigation or any other specialty.

Criminal Appeals for the Mostly Civil Lawyer

By Lara O'Donnell and Sonia O'Donnell

Whether you are a young lawyer, or a not-so-young lawyer, how do you tackle the first appeal?

Supreme Court Jurisdiction over an Appeal from a Rule 23(f) Denial

By Peter E. Davids and Jeffrey A. Mandell

Does the Court have jurisdiction over an appeal from a circuit court's order denying a petition for interlocutory review under Federal Rule of Civil Procedure 23(f)?

Committee CLE Program Offers Unique Perspective "From the Inside Out"

By Thomas J. Donlon

The Appellate Practice Committee conducted a spirited and enlightening mock trial.

An Associate's Reflections on Her First Oral Argument

By Mary Ann Couch

Preparation is key.

Women Justices Speak Out: On Mentoring, Leadership, and Effective Advocacy

By M.C. Sungaila

Appellate judges give their insights on how to present your case successfully.

Consequences of Mootness on Appeal

By David L. Schoen

The factors the courts consider relevant in determining when the order dismissing an appeal should also vacate the previous judgment.

Don't Let Misconceptions about Appeal Bonds Hinder Your Client's Appeal

By Daniel Huckabay

It may be in the best interest of the client to provide another form of security to the court.

Young Lawyer's Corner: Those Pesky Rules

By Anthony T. Eliseuson

Ensuring familiarity and compliance with the rules is one of the important and fundamental aspects of successful appellate advocacy.

Book Review: Michigan Appellate Handbook

By Dennis Owens

A highly useful and nicely crafted practice manual.

Finding Your Calling: Pro Bono as a Path to New Practice Areas

By M.C. Sungaila

Attorneys at all levels may wish to give back and serve the underserved. But few expect to find their calling.

You Can't Make That Argument! ... Yes, You Can!

By Angela Winfield

A new argument is not the same as a new claim.

The Effects of Recent Technology Developments on Appellate Practice

By Jason Patrick Kairalla and Justin S. Wales

This ain't your father's courtroom.

The Rising Role of Appellate Attorneys in U.S. Attorneys' Offices

By Chantale Fiebig

In appeals against the United States it may be necessary to retain your own appellate specialist.

Five Tips for the Persuasive Researcher

By Eric P. Voigt

Five tips for drafting a persuasive piece that will make you shine.

Book Review: Judicial Conduct and Ethics

By Dennis Owens

This book belongs on any judge's desk.

Book Review: Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law

By Dennis Owens

Don't forget to read the fine print.

Book Review: Camerado, I Give You My Hand

By Dennis Owens

Perhaps this book will open some eyes toward prison reform.

The Rights of Children of Same-Sex Couples: In Their Own Words

By Monique R. Sherman

An amicus curiae brief gives the children a powerful and persuasive voice in the Supreme Court.

Determining Finality of a Judgment Awarding Damages

By Victoria Dorfman

Where a judgment entails an award of damages, it does not always have to contain the actual sum to be final.

Cross-Appeals: Party Postures and Strategic Considerations

By Jennifer L. Swize

Young Lawyer's Corner: A primer on the many nuances of mixed appeals.

Chevron: Stronger Than Ever in City of Arlington, Texas

By Bradford S. Babbitt

Sometimes landmark decisions grow from prosaic beginnings.

UPDATE: Rule 50 and Purely Legal Arguments: A Circuit Split

By Kelli Benham Bills

The Eighth Circuit clarifies its position.

Preserving Pretrial Issues for Appeal

By Ashley M. Felton

Litigants should be aware of hazards in the Federal Rule of Evidence 103(a) post-2000 amendment.

Book Review: Federal Court of Appeals Manual

By Dennis Owens

A required resource for any appellate practitioner.

Book Review: Law in American History: Volume 1

By Dennis Owens

A masterful account of the development of our country's law.

Book Review: Appellate Practice Compendium

By Dennis Owens

A set of insider's guides to all of the appellate courts in the United States.

Rule 50 and Purely Legal Arguments: A Circuit Split

By Kelli Benham Bills

Counsel should always research and consider the position of the circuit in which he or she is practicing.

Federal Circuits Remain Split on Full Faith and Credit

By Lara O'Donnell

The lack of clarity with respect to the doctrine's application continues to demand attention.

Chasing a Red Herring Through the District, Circuit, and Supreme Courts

By Alexandra Campbell-Ferrari

The specific facts of a case can matter less than making sure the court understands the controlling law and regulations.

What's New in Constitutional Studies?

By Dennis Owens

Four reviews of books taking differing approaches to constitutional interpretation.

Book Review: Lincoln's Tragic Pragmatism: Lincoln, Douglas, and Moral Conflict

By Dennis Owens

A highly interesting book that some readers may find heavy-going.

Book Review: A Practitioner's Guide to Appellate Advocacy

By Joseph Esry

An excellent resource worthy of your library.

The Role of the D.C. Circuit in Administrative Law

By David M. Cooper

The particular expertise of the court is an important consideration in how cases are briefed there.

The State Solicitor General Boom

By Kevin C. Newsom

What does the modern state SG movement mean for private-sector lawyers?

Young Lawyers Corner: Getting Appellate Experience

By Seth T. Floyd

A new associate need not wait to work on appeals.

Appeals in Intra-Circuit Ancillary Proceedings

By Josh Jacobson

The circuits are clearly divided on whether such suits are appealable.

Book Review: Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It

By Dennis Owens

This may be one of the most important books published this year.

"Manufactured Finality" and the Right to Appeal in Federal Courts

By Bennett Evan Cooper

The circuits are split on the test for when appellate jurisdiction can be manufactured.

Federal Circuit Appeals: Selectivity Remains the Name of the Game

By Emily J. Tait

Patent cases are tried in federal district courts across the United States, but always end up in the same place.

Tips for the First-Time Brief Writer in the U.S. Court of Appeals

By Anne Marie Lofaso and Nicholas F. Stump

Know the rules, know the law and the record, and unleash your writing beast.

Unfamiliar Territory: Preparing for Your First Out-of-State Appeal

By J. Tyler Butts

The rules and practices in state court vary considerably more than at the federal level.

Book Reviews: On Interpreting the Law

By Dennis Owens

Your reviewer owes you this disclosure: We do not hate statutes.

Appeal of Interlocutory Remand Orders in Putative Class Action Cases

By Karen S. Precella and Kelli Benham

CAFA expressly creates appellate jurisdiction to review certain orders granting or denying a remand.

Confirming Federal Judges: Perspectives, Rancor, and Potential Reform

By Stephen D. Feldman

The judiciary has 42 spots that have no prospect of being filled in the short term.

Young Lawyer's Corner: Advice on Jury Instructions and Verdict Forms

By Cristina Alonso

The importance of having clear jury instructions, objections, and rulings thereon cannot be underestimated.

Jurisdictional Divestiture: Staying a Case Pending Interlocutory Appeal

By R. Aaron Chastain

The availability of an interlocutory appeal is not always enough to maintain the potential benefits of arbitration.

Book Review: Plessy v. Ferguson: Race and Inequality in Jim Crow America

By Dennis Owens

The background of the landmark case takes center stage here.

Book Review: Courtwatchers: Eyewitness Accounts in Supreme Court History

By Dennis Owens

The stories are often delightful, illuminating the personality of a justice or exploring an aspect of court life.

New Act Clarifies Process for Diversity Cases with Multiple Defendants

By Marie E. Chafe and Peter M. Durney

Later-served defendants no longer bound by the choices of earlier-served defendant.

The Future of Discretionary Interlocutory Review

By Pierre H. Bergeron and Bruce A. Khula

It is time to revisit the rigidity of the final-order doctrine.

Review at the U.S. International Trade Commission

By Mark A. Kressel

A first trip through commission review can be something like an American's first visit to Canada: Everything looks just a little bit different.

Using the Standard of Review to Advance Your Arguments on Appeal

By Zachary Bolitho

Don't overlook a useful tool in persuading appellate-court judges.

Getting Your Name in Print: Sometimes It Is Not a Good Thing

By Tom Donlon

Attorneys must consider that their failings could appear in a written opinion and, soon after, on an Internet site near you.

Young Lawyers: Keys to Successful Writing and Unlocking Your Talent

By Sylvia H. Walbolt

The best way to improve your writing is to subject it to the crucible of a cold set of eyes.

Book Review: Appellate Practice in Federal and State Courts

By Dennis Owens

This is a book on federal appeals with a mere nod of the head to the state courts.

Why the Appellate Mandate Matters

By Jennifer L. Swize

This refresher on the appellate mandate addresses its basic, procedural aspects, as well as the substantive consequences of its issuance.

Amicus Brief Writing for the Circuit Court: The Why and the How

By Jill M. Przybylski and Brock A. Swartzle

While no one would encourage flooding the circuit courts with amicus briefs in run-of-the-mill appeals, there are reasons for increased amicus participation in atypical circuit-court appeals.

The Hutz Brief: How to Respond to Bad Briefs

By Jeff Berger

Win over the judge with restraint, not ridicule.

Books Every Young Appellate Lawyer Should Own and Use

By Dennis Owens

Any young lawyer wishing to focus on appellate practice should check these books out.

Noteworthy Supreme Court Books

By Dennis Owens

These are not practice books; most were not written for lawyers.

How to Make Technical Briefs Understandable for Generalist Judges

By Hugh S. Balsam and Patrick C. Gallagher

With some care and effort, a lawyer can reduce even the most complicated subject matter to something that generalist judges—and their clerks—can understand.

Appealing Dismissal of Federal Claims upon Remand of State Law Claims

By Lawrence A. Kasten

There has been little discussion about procedure where a district court assumes jurisdiction over an action including federal and state-law claims, dismisses the former, and then remands the latter.

Advice to Young Lawyers: Oral Argument for My Adversaries

By Brian J. Paul

The author's prior advice on brief writing was so well received that he's rounding things out with advice on oral argument.

Appellate Advocacy: A Young Attorney's Perspective

By Lara O'Donnell Grillo

The author shares some of what she has learned through experience in several years of appellate advocacy in many different environments.

Evolution and Revolution at the Supreme Court: How the Court Became "Supreme"

By Robert S. Peck

Like many other decisions before it, the Citizens United decision exemplified the Court's power to change our nation in both profound and subtle ways.

When Colors Do Not Match: The Serious Business of Appellate Advocacy

By Alexander Rayskin

The words of Justice Benjamin Cardozo ring as true today as they did almost a hundred years ago when he shared them with the world. But what can they mean for the appellate practitioner?

Book Review: Ross Guberman's Point Made

By Sanford Hausler

It's one thing to pick up some tricks from a law professor who teaches legal writing; it's another to pick them up from Seth Waxman or Carter Phillips.

Should Supreme Court Arguments Be Televised?

By Stephen Feldman

Increasingly, trial lawyers and clients are calling on appellate counsel to help set a case up for appeal early in the proceedings, well before a notice of appeal is filed.

What Appellate Lawyers Should Know About Making a Trial Record

By Mary-Christine (M.C.) Sungaila

Increasingly, trial lawyers and clients are calling on appellate counsel to help set a case up for appeal early in the proceedings, well before a notice of appeal is filed.

Does "Motivated Reasoning" Help Explain How Judges Decide Cases?

By Steve Sanders

In her book, Eileen Braman asks, are judges' decisions best explained by personal inclinations or legal authority? The answer likely involves a complex interplay of both.

Notice of Appeal Time Limits Are Mandatory and Jurisdictional

By Lawrence A. Kasten

It is clear that the burden of ascertaining and complying with notice-of-appeal time limits rests on the shoulders of the appellant and its counsel.

Making the Most of Your Appellate Clerkship

By Michael Giel

You have graduated law school and have secured an appellate clerkship. Congratulations! Now what?

Writing a Winning Legal Argument: What To Do and What Not To Do

By Lawrence D. Rosenberg

In this era of declining jury trials, a lawyer’s skill in writing a winning legal argument may well dictate whether the client wins or loses.

The Appellate Practice Associate’s Survival Guide

By V. Dorfman, J. Renzelmann, L.D. Rosenberg, and G.T. Sumner

Associates who follow some basic rules will find themselves in a position to do very well in a firm appellate practice.

Ten Steps for Becoming an Appellate Lawyer

By Lawrence D. Rosenberg

So you want to become an appellate lawyer. (Are you crazy? Have you sought professional help?)

So You’re Doing a California Appeal? A Primer for Out-of-State Lawyers

By Steven A. Hirsch, Dorothy McLaughlin, and Kevin Reed

It is somewhat different, and you need to understand and appreciate the differences, but you can do it.

Review of Partial Judgments Under FRCP Rule 54(B)

By James C. Martin and Jayne E. Fleming

Determining what constitutes a single claim for purposes of Rule 54(b) finality has occasioned a good deal of subtle jurisprudence.