Lessons for Lawyers New to Civil Appellate Practice in Colorado Courts
| Publication year | 2014 |
| Pages | 85 |
Departments Young Lawyers Division
Lessons for Lawyers New to Civil Appellate Practice in Colorado Courts
By Alan Epstein, Matthew Hegarty
The CBA Young Lawyers Division Department comprises practical articles and essays of interest especially to novice attorneys, as well as profiles and event and news items. Suggestions for article topics or final draft manuscripts may be sent to Coordinating Editor Christopher D. Bryan—(970) 947-1936, cbryan@garfieldhecht.com.
About the Authors
Alan Epstein is a member of Hall & Evans, LLC with more than thirty years of appellate practice experience, including a clerkship with Judge Charles D. Pierce of the Colorado Court of Appeals— (303) 628-3300, epsteina@hallevans.com. Matthew J. Hegarty is a third-year associate at Hall & Evans and previously clerked for Judge David M. Furman of the Colorado Court of Appeals—(303) 628-3300, hegartym@hallevans.com.
For attorneys just beginning their foray into appellate practice, the process in Colorado state appellate courts is likely to be daunting and perhaps overwhelming. To assist new attorneys or attorneys who may be transitioning into this practice area, this article provides both a retrospective on lessons on briefing and arguing appellate cases gleaned from decades of appellate experience, and a section highlighting important court rules to remember when presenting a case before those courts.
Briefing and Arguing
Practitioners new to appellate law should put into practice a number of principles regarding presenting a case to the appellate courts. However, experience teaches that two basic principles should receive particular attention: (1) mindfulness toward the standard of review for each issue a case presents, and (2) preparedness for oral argument, assuming orals are granted.
1. Be mindful of the standard of review.
It is often the driving force behind how to present a case on appeal. Appellate standards of review typically fall into three categories:
> De novo. This implicates the lower court's legal conclusions, such as interpretation of a constitutional provision, statute, or court rule;[1] construction of a contract or other legally significant document;[2] or rulings on dispositive pretrial motions[3] or certain mid-trial or post-trial motions.[4]Appellate courts reviewing de novo give no deference to the lower tribunal.[5]
> Clearly erroneous. This implicates the lower court's factual findings in certain instances, such as during a bench trial.[6] Appellate courts reviewing for clear error exercise less skepticism than under de novo review and defer to the lower tribunal's fact-finding, unless "left with the definite and firm conviction that a mistake has been committed."[7]
> Abuse of discretion. This implicates the lower court's ruling on a discretionary matter, such as admissibility of evidence at trial[8] and, in most situations, the decision of whether to grant or deny attorney fees or costs.[9] Appellate courts reviewing for abuse of discretion defer to the lower court's decision unless "manifestly arbitrary, unreasonable, or unfair."[10]
Other standards of review include (1) deference to an administrative agency’s interpretation of its own enabling statute and administrative regulations, except where contrary to statutory and constitutional law;[11] and (2) mixed questions of law and fact, such as jury instructions, for which the wording of a particular instruction is reviewed de novo for legal accuracy but the district court’s decision to give the instruction in light of the record at trial is reviewed for abuse of discretion.[12]
Decisions reviewed for abuse of discretion or clear error are unlikely to be reversed by a higher court unless the decision was extremely egregious.[13] Hence, a more constructive approach is to focus on issues reviewed de novo. If most of the appealable issues involve discretionary decisions, emphasize the egregiousness of the lower tribunal’s ruling through liberal citation to the trial or hearing transcript, explanation of how the abuse of discretion pervaded the trial or prejudiced the client, and discussion of cases where similar decisions constituted abuses of discretion.
2. Be well-prepared for oral argument.
Treat oral argument like a conversation with a senior partner. The strong legal and factual points of the case should be emphasized and explained convincingly, and the weaknesses of the case should not be ignored but rather addressed in a matter-or-fact manner.[14] Also, expect the panel to be well-prepared. For example, during oral argument before the Colorado Court of Appeals, judges almost always possess a draft opinion resolving the appeal, and at least one judge and his or her clerks have read the entire record. Thus, the questions judges pose to advocates likely encompass what they perceive to be the salient legal principles...
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