All appellate arguments have predesignated time limits. Some basic principles will help the advocate make the most of the period available. If you represent the appellant, always request rebuttal time. This is one of the very few tactical rules in litigation that have no exceptions. You do not know what opposing counsel will say, so it is invariably foolish to waive in advance your opportunity to respond to it. Indeed, if you do not reserve rebuttal time, opposing counsel may

You want judges to read your brief with care, but if it is hard on the eye or jarring to the internal ear, the judges are likely to skim it in frustration and move on to something else. Here are some simple rules to make your brief a pleasure to read: ∙ Avoid full justification. Although your left margin should be aligned, the right margin should not. Otherwise, the spaces between words will be wider in some lines and narrower in others. Wide spaces accelerate the reader’s in

On September 19, 2017, in American Beverage Association v. City and County of San Francisco, the United States Court of Appeals for the Ninth Circuit annulled a San Francisco ordinance requiring advertisements for certain beverages sweetened with sugar to include large boxes stating: WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco. A critical part of court’s reasonin

Imagine when a judge calls your case, the opposing attorney approaches the counsel table in a bizarre feathered outfit like the one in the picture. Someone listening to his argument on the radio might hear a brilliant presentation, but you and the judge may find it difficult to give it your complete attention. Content cannot be fully effective if the delivery is distracting. Similarly, several common writing habits dilute the effect of strong briefs by shifting the reader’s a

In a recent post I explained the importance of standards of review in appellate practice. In brief, when it exercises deferential review, the appellate court determines if the lower court’s decision was reasonable even if the appellate court disagrees with it. By contrast, when it employs “de novo” review, the appellate court makes a fresh examination of the issue and decides if the lower court was right. When the appellate court determines if the lower court was right, it ma

I recently chatted with a colleague representing a young boy with a chronic digestive disorder. The principal of his public school refused to allow him to snack during the day as his doctor required, and the child’s condition seriously deteriorated as a result. My friend brought a personal injury action on the boy’s behalf against the school board and the principal. The case would have been much stronger if my friend had included a civil rights cause of action in her complain

One of the most frustrating events in the life of an appellate attorney occurs when a colleague asks us to appeal from an adverse judgment and our examination of the record reveals what would have been an excellent issue for review but our colleague did not object to the trial judge’s ruling. When we ask, “Why didn’t you object?” we usually hear one of two answers: “I didn’t think of it” (an understandable mistake) or “The judge would not have agreed with me” (an inexcusable

A scientist examining some aspect of nature has a range of optical implements at her disposal, such as a microscope, a magnifying glass, and a telescope. The view she obtains and the conclusions she reaches are in part a function of the instrument she selects. An appellate court is in a similar situation, but instead of having a choice, the tool it must use is determined by the type of issue it is considering. The lens through which an appellate court assesses the ruling

We all learned in grade school about the Bill of Rights, the first ten Amendments to the Constitution, which the Founding Fathers enacted to protect the rights of individuals. Unfortunately, relatively few are aware of what came next: the Eleventh Amendment, which limits enforcement of those rights against states under the principle of sovereign immunity. Many civil rights cases have suffered quick but painful deaths because the plaintiffs’ lawyers filing them did not know of