Kansas Appellate Advocacy an Inside View of Common-sense Strategy

Publication year1997
Kansas Bar Journals
Volume 66.


Journal of the Kansas Bar Association
February/March, 1997


Patrick Hughes [FNa1]

Copyright (c) 1997 Kansas Bar Association; Patrick Hughes

When I meet new people at cocktail parties and the like, eventually the question comes up of what it is that I do. If I'm in a particularly ornery mood I say: "A little of this and a little of that." I explain: "Violent crime, mostly. Murder, as much as anything, although I used to do some aggravated robbery or burglary occasionally . . . a battery now and again. I've done a couple of convenience store heists." As they look frantically for some other small group on which to intrude, I add, "I was involved in midwifery for awhile, after a few sour real estate deals and experiences with leasing and the oil business that didn't go too well. With one of the best gigs I got I ended up in the middle of a paternity suit. You see, the price has been high, several divorces, a few work-related injuries and of course my fair share of tax problems."

If no security guard can be readily found, the conversation continues. """Sounds like you keep busy."

"Well, filings are way up." After a quizzical look, I add "I'm a research attorney in the Kansas appellate courts. I work on all kinds of cases." [FN1]

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Appellate arguments, like cocktail party conversation, can be disconcerting to those not quite up to speed on what's going on. Many attorneys enter the Kansas appellate courts with no more than passing thought to appellate strategy and are surprised by the results. The fundamental rule of appellate strategy is much like the fundamental rule of cocktail parties: Know who you are talking to. Contrary to popular belief, knowing whom you are addressing in appellate practice is not principally a matter of knowing the predilections and idiosyncrasies of each appellate judge or justice, but comes from an understanding of the appellate system.

Who they are and how they're built [FN2]

The two principal [FN3] appellate state courts in Kansas, the Kansas Court of Appeals and the Kansas Supreme Court, have similar functions, but they go about them in quite different manners. Indeed, from the viewpoint of effective advocacy, some of the differences may be more critical than the similarities.

The majority of appeals are handled by the court of appeals. [FN4] The court of appeals consists of 10 judges, [FN5] one of whom is the chief judge with power over court administration. [FN6] Each judge has an executive assistant and a research attorney in his or her chambers. [FN7] The court as a whole is also assisted by a central staff of research attorneys whose workload may include cases assigned to any judge. These central research staff attorneys also have some responsibilities to the court as a whole, including determining whether the court of appeals has jurisdiction over each case it is to hear, and a motions attorney has responsibility for evaluating various motions filed by the parties in the course of an appeal. In the court of appeals the docket is managed inhouse through the chief judge's office. [FN8] The number of cases handled by the court of appeals is truly staggering. In 1995 the court received 2,185 case filings. [FN9]

Like the court of appeals judges, each of the seven Kansas Supreme Court justices has an executive-secretarial assistant and a research attorney in his or her chambers. [FN10] The supreme court central research staff consists of only two attorneys. [FN11] Their responsibility is to evaluate and make recommendations regarding petitions for review of court of appeals decisions along with other tasks in cases of original jurisdiction. The supreme court docket is managed by the office of clerk of the appellate courts. During 1995 the supreme court had 263 cases filed. [FN12]

Generally, in the court of appeals a case may be handled in one of three ways: as a summary disposition case; as a summary calendar case; or as an oral argument case. Before being placed on the docket the cases to be decided by the court of appeals are screened and graded by estimated level of difficulty. In the screening process the briefs for the cases are distributed among the judges, who read the briefs they are assigned and determine both the complexity of the case and if oral argument would be helpful.

Summary disposition cases are those which essentially raise no justiciable issue. These include single-issue cases directly controlled by a recently decided case, [FN13] or other cases where the lack of merit is equally obvious. [FN14] In summary disposition cases the judges have the benefit of the parties' briefs and a short memo or proposed opinion from a research attorney briefly explaining the required disposition. Summary disposition cases are decided on special dockets, and often result in very short "rule opinions" [FN15] that do little more than cite the controlling authority.

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Summary calendar cases are those, other than summary disposition cases, which it is determined "fail to present any new questions of law and in which oral argument is deemed neither helpful to the court nor essential to a fair hearing." [FN16] The parties are notified when a case is put on the summary calendar and have the opportunity to request oral arguments nevertheless. [FN17] Although the attorneys are not notified, summary calendar cases are decided at the same time as oral argument cases. In such cases the judges have the benefit of the briefs of the parties and a fairly extensive prehearing memorandum or proposed opinion prepared by a research attorney.

In oral argument cases the court has the additional resource of interaction with the parties' attorneys and development of the issues at a hearing. Each oral argument case is allotted a total of 30 minutes, 15 minutes to each side, unless the appellant requests more time. [FN18]

The court of appeals sits in panels of three judges when it decides cases. [FN19] The panels travel and different panels hear oral arguments in different parts of the state. [FN20] Because of the expanding caseload the court faces, a panel often consists of two court of appeals judges and one """outside" district judge or retired judge. The summary disposition docket is handled entirely by court of appeals judges in Topeka. Sometimes special "blitz" dockets, scheduled to reduce the backlog of pending cases, employ panels consisting of one court of appeals judge and two outside judges.

The court of appeals panels will typically conference and decide cases immediately after oral arguments are finished. Prior to arguments each case is assigned to a specific judge on the panel to prepare. If that judge is in the majority on the final decision, he or she will be the one to write the opinion.

The preparatory work on the cases is done by court staff--the research attorneys. Most cases assigned to court of appeals judges will be evaluated and prepared by the research attorney working directly for the assigned judge. Those that aren't prepared by the judges' research attorneys, including almost all cases assigned to outside judges, are prepared by the central research staff attorneys.

The preparation done by the research attorneys consists of reviewing the record on appeal and establishing a complete, unbiased statement of the relevant facts; drafting a non-partisan statement of the issues to be decided; identifying the standard of review by which the court will evaluate each issue; researching the issues to find the controlling law and relevant authorities (including verifying the authorities cited by the parties); and making a recommendation as to the outcome of the case. Depending on the judge and the degree of certainty that a particular outcome will be embraced by the court, the research attorney's work may take the form of either a prehearing memorandum or a proposed opinion. Each judge on the panel receives a copy of the memo or proposed opinion about a week before oral arguments. Memoranda may range from a few pages to 60 pages or more, depending on the complexity of the case. The ultimate resemblance between the research attorney's work and the final opinion also varies with the complexity of the case and the preferences of individual judges.

After conferencing and at least tentatively deciding each case, the judge to whom the case is assigned writes the opinion, which is then circulated to the other judges for their approval or input. [FN21] In the court of appeals opinions are generally handed down weekly.

Unlike in the court of appeals, where the court sits in three-judge panels to hear oral arguments over two consecutive days, the supreme court sits en banc, hearing arguments for a full week. In general calendar cases in the supreme court, unless oral arguments are waived by the parties, or the court grants an extension of time, each side is allowed 30 minutes. [FN22] As in the court of appeals the cases are assigned beforehand among the justices for presentation in conference and opinion writing, and each justice's research attorney prepares prehearing memoranda for the cases assigned to his or her justice. [FN23] Copies of prehearing memoranda are generally available to any justice on the court who chooses to make use of them.

In the supreme court the cases are conferenced and decided in the week following oral argument, rather than immediately after a day's arguments are finished. The first two days of that following week are devoted to final preparation

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for conference after the justices have had the benefit of hearing from the parties in person. As with the court of appeals, in the supreme court the assigned justice, if he or she is in the majority, writes...

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