69 The Alabama Lawyer 443 (2008). Ten Tips to Improve Your Case on Appeal.

• Author: BY SCOTT BURNETT SMITH

The Alabama Lawyer

2008.

69 The Alabama Lawyer 443 (2008).

Ten Tips to Improve Your Case on Appeal

Ten Tips to Improve Your Case on AppealBY SCOTT BURNETT SMITHI am an appellate lawyer. That means I read law and write briefs all day, most days. I am more qualified to be a monk than a trial lawyer. My partners rarely come to me for advice before they go off to try a case before a jury. But because they don't, they have to listen to me complain when they bring me their cases to handle on appeal. So recently they asked me to give them my top ten tips to improve their cases on appeal (mainly so they wouldn't have to listen to me gripe). Here is what I told them.

1. Put everything in the record.

Don't tell me what really happened or what the real facts are. It doesn't matter. The only thing that matters on appeal is what is in the record. If it's not in the record, it didn't happen; it's not a fact. The record on appeal consists of those papers and exhibits filed in the trial court, along with transcripts of any court proceedings. See FED. R. APP. P. 10(a); ALA. R. APP. P. 10(b)(1). Those matters of record are the only things you can cite in an appellate brief, and most appellate rules require you to substantiate everything you say about what occurred in the trial court with citations to the record. See FED. R. APP. P. 28(a)(7) and (a)(9); ALA. R. APP. P. 28(a)(5), (a)(7) and (a)(10). Cites to a docket entry for a hearing where no court reporter was present will not do, nor will descriptions of a critical argument in a brief that was never filed. And if something important might be said, be sure there is a court reporter present. This applies not only to pretrial conferences and hearings but also to trial proceedings. Jury charge conferences and sidebars are places where reversible error happens, but too often they are not transcribed by the court reporter. Thus, be sure to get everything in writing and get it on file.

Along the same lines, please do not write letters to judges. Letterwriting is for lovers, not litigation. In the first place, letters almost never make it into the record. If your opponent sends a letter to the court, respond in a brief that you file with the court and attach the opponent's letter to your brief. More important, a letter is no way to request affirmative relief on your client's behalf. Rather, Civil Rule 7(b) requires that any "application to the court for an order ... be by motion" which must "be made in writing" unless you are in the midst of trial or a hearing. FED. R. CIV. P. 7(b)(1); ALA. R. CIV. P. 7(b)(1). File a motion. Don't send a letter.

2. Tell your story.

The most important part of an appellate brief is its narrative. You must tell a number of judges your client's story. To do so, you need witnesses who tell the story in the transcript. This rule applies equally to plaintiffs and defendants, but plaintiffs rarely miss this tip. Civil defendants, however, almost always miss it. Instead, defense witnesses at trial inevitably tell only small, discrete pieces of the tale. Stitching together a compelling narrative from such disjointed testimony makes briefing the appeal more difficult.

To improve the story-both at trial and on appeal-use storyteller witnesses. Storyteller witnesses should provide a broad perspective on the case, explaining the client's perspective in the broadest terms. If done effectively, the storyteller witness's testimony will provide much of the narrative needed to...