Putting Your Best Foot Forward - Improving the Effectiveness of Appellate Advocacy - July 2008 - Judges' Corner
| Publication year | 2008 |
| Pages | 111 |
| Citation | Vol. 37 No. 7 Pg. 111 |
2008, July, Pg. 111. Putting Your Best Foot Forward - Improving the Effectiveness of Appellate Advocacy - July 2008 - Judges' Corner
July 2008
Vol. 37, No. 7 [Page 111]
Judges' Corner
(c) 2008 Diana L. Terry
Judges' Corner is published quarterly to provide information Colorado judges would like to disseminate to attorneys. If you would like to suggest topics or write an article for this Department, please e-mail coorindating editor Hon. Alan Loeb, Colorado Court of Appeals Judge, at alan.loeb@judicial.state.co.us.
After a judicial clerkship, followed by twenty-one years of private practice primarily in the area of complex commercial litigation, Diana L. Terry was appointed as a judge on the Colorado Court of Appeals in July 2006.
Does the quality of advocacy change the outcome of an appeal? Generally, it does not, because appellate judges are committed to reaching the correct result, no matter how effective or ineffective the advocate. However, if you are not effectively conveying the gist of your reasoning, there is a chance the court may misinterpret your arguments, and this could affect the outcome of an appeal.
Here are some tips to help you put your best foot forward and avoid missteps that can get in the way of effective advocacy. Although these remarks relate specifically to practice before the Colorado Court of Appeals, most of these concepts can be applied to appellate practice in other courts.
When a person's life or liberty is at stake, or his or her parental rights have been terminated, the stakes may be so significant that counsel may have no choice but to appeal.(fn1) However, when less fundamental rights are at issue, counsel should evaluate with the client the chances of success on appeal.
A purely objective criterion for gauging such success is the applicable standard of review. The standard of review is the guiding principle for the court in determining how to handle the appeal, and its importance simply cannot be overstated.(fn2) It may very well determine the outcome of the appeal.
In a criminal case, when the trial court has committed an error, the outcome may be very different if the standard of review is harmless error than it would be if the standard were plain error. In civil cases, appeals sometimes are filed with regard to pure findings of fact - as distinct from legal conclusions - made by the jury or the trial court. The applicable standard of review in such instances is "clear error,"(fn3) and the appellate court will not reverse the court's finding unless there is no support for it in the record.(fn4) If there is any evidence at all (even controverted evidence) to support the trial court's finding, the chances of reversal on that issue are very slim.(fn5) Credibility determinations are solely the province of the finder of fact, and the appellate court generally will not second-guess them.(fn6) You and your client should discuss whether it is cost-effective to appeal such an issue. Similar considerations should govern whether it is worthwhile to appeal a trial court's ruling in instances where it...
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