December 2015 Bar Bulletin
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December 2015 Bar Bulletin

A Clerk's Lineup: Ten Underemphasized Aspects of Appellate Practice (First of three parts)

By Erick Reitz


Effective appellate advocacy is largely a matter of practice and education. However, most litigators are only able to spend a fraction of their time on appeals, and direct feedback from the bench is infrequent. Personal progress is therefore difficult.

I hope to address this by highlighting certain harmful practices and oversights that -based on my two years clerking on the U.S. Court of Appeals for the Eighth Circuit and conversations with fellow clerks -appear regularly. As a young attorney, I cannot pretend to be the comprehensive authority on best practices, but I have had firsthand experience with a number of fairly common practices that can endanger your appeal, harm your credibility or annoy judges and clerks.

In this three-part article, I will focus on 10 features of appellate practice, which are underappreciated or simply cannot be emphasized enough. In the first part, I focus on standards of review; in the second, I will address building a credible argument; and in the third, I will discuss how to effectively utilize the appellate record and oral argument.

Standards of Review Are Important

Providing "'the essential language of appeals,'"1 the standard of review "is to the appellate court what the burden of proof is to the trial court."2 Yet, commentators have criticized appellate courts as taking a lackadaisical approach to standards of review, going through the motions of quoting a standard without actually applying it.3

Other times, commentators suggest, judges manipulate or avoid the applicable standard so as to reach a predetermined conclusion.4 And even when honestly and rigorously applied, commentators question whether the standard makes much practical difference in a case's resolution.5

Some briefs give standards of review "boilerplate" treatment, throwing in a case quote or two, but otherwise ignoring the topic. It may be that the task simply becomes too routine over time to continue sparking much attention. Or it may be that commentators' criticisms have sunk in, causing some to see little benefit in spending time on a question that will be ignored, circumvented or otherwise negated by the court. In my experience, however, the standard of review should always merit a few moments of genuine consideration.

Admittedly, it is difficult to defend the precision of standards of review because, in practice, it is tough to delineate between deferring and heavily deferring. Even so, each standard sets an undeniable tone for the case, which judges will recognize. Even assuming a standard of review cannot be applied more precisely than by taking on its "mood"6 of deference, the standard's rhetoric is extremely useful for judges on the fence about the outcome, and it can help tip the balance in tough cases, just as burdens of proof are meant to do in a trial.

Commentators might be right that some judges, in some cases, decide substantive questions de novo without regard for the appropriate standard, but commentators do not (and cannot) claim this is true in all cases.7 Quite the opposite, in my experience, most judges (and clerks) are honest in attempting to view questions through the proper lens, and even when the proper standard runs against one's first impression, many will be careful in analyzing the substantive question and in reexamining their impressions with the proper "mood" in mind.

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