Calling all appellate practitioners!  Need a quick review on initiating a civil appeal in federal court?

Listen to our experts from our 9th Circuit Court of Appeals Boot Camp: The Nuts and Bolts, which attendees praised as a “grand slam”!

“Really excellent speakers and content, a great intro for newer attorneys or refresher for experienced ones.”

This remarkable program assembled wonderful judges and seasoned litigators to present a comprehensive review of the 9th circuit structure, appellate motion practice, mediation program, appellate brief writing, oral argument, and post-decision practice.

To give you a glimpse of the program, this post shines a light on the first step in Initiating the Appeal in Civil Cases, and is excerpted from a discussion prepared by John F. Querio of Horvitz & Levy and Janet Schroer of Hart Wagner.

And the first step in an appeal is …. Should you appeal? 

1. Factors to consider include:
   • Likelihood of success
   • Cost considerations (including whether to retain appellate counsel)
   • Timing considerations
   • Appeal as settlement leverage
2. Do you have an appeal as a matter of right?
   • See the Final Judgment Rule, 28 U.S.C. § 1291
   • Review the Merger Doctrine/Reviewability of Interlocutory orders, Dupree v. Younger
3. Think about other types of appeals as a matter of right (e.g., orders denying motions to compel arbitration under Federal Arbitration Act.
4. What about Post-Judgment appeals (e.g., appeals from orders awarding attorney fees/costs, especially in employment and civil rights cases
5. If there is no appeal as a matter of right, what are options for interlocutory review?
   • Petitions for permission to appeal (FRAP 5)i) Interlocutory appeals by permission (28 U.S.C. § 1292(b))
   • Entry of separate judgment as to fewer than all parties/claims (FRCP 54(b))
   • Writs (28 U.S.C. § 1651)

This is just the first step of many in initiating your appeal in the 9th Circuit.  To learn more, order our 9th Circuit Court of Appeals Boot Camp: The Nuts and Bolts. Since you read this post, you can take $25.00 the precorded package by using this coupon at checkout: 9thBlog25.

In our previous blog post, Avoiding Procedural Traps on Appeal: Part 1, we featured the first 10 tips recommended by Judge Rebecca Glasgow of the Washington State Court of Appeals and Ian Cairns of Smith Goodfriend to ensure you avoid procedural traps when filing an appeal. In this week’s post, complete your knowledge by reading the remaining essential tips! You can download the full presentation of our 7th Annual Advanced Appellate Program (Washington) here.

11. Failure to provide a sufficient record

1. “An insufficient record on appeal precludes review of the alleged errors.” Bulzomi v. Dep’t of Labor & Indus., 72 Wn. App. 522, 525, 864 P.2d 996 (1994).
2. Make an adequate record below, e.g., filing proposed instructions, making sure colloquies and rulings are recorded, and making offers of proof.
3. Designate that record in the appellate court. See generally Title 9 of the RAPs.

12. Inviting Error

1. “The doctrine of invited error ‘prohibits a party from setting up an error at trial and then complaining of it on appeal.’” State v. Wakefield, 130 Wn.2d 464, 475, 925 P.2d 183 (1996) (quoting State v. Pam, 101 Wn.2d 507, 511, 680 P.2d 762 (1984)).
2. Don’t raise arguments subject to an invited error rebuttal where possible.
3. Be prepared to explain how the alleged error was not actually “invited,” i.e., “an affirmative, knowing, and voluntary act,” State v. Mercado, 181 Wn. App. 624, 630, 326 P.3d 154 (2014), or to argue potential exceptions to the rule.
   

13. Judicial Estoppel

1. Sometimes arises for the first time on appeal if arguing a party is taking a position contrary to one taken below.
2. Preclusion of inconsistent positions regarding factual assertions.
3. Precludes a party from taking one position below and then later trying to gain a tactical advantage by taking an opposite position.
4. Does not prevent alternative arguments.

14. Raising new arguments on appeal

1. “As a general rule, appellate courts will not consider issues raised for the first time on appeal.” State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995) (citing RAP 2.5(a)).
2. If the time for doing so has not expired, consider filing a motion for reconsideration to more squarely preserve and frame appellate arguments.
3. Under limited circumstances a party may raise new arguments on appeal. See RAP 2.5(a). Chapter 11 of the WSBA Appellate Practice Deskbook has comprehensive lists of issues that can and cannot be raised for the first time on appeal.
4. There are also a number of case law exceptions to the general rule that new issues may not be heard on appeal. See § 11.4 of the WSBA Appellate Practice Deskbook.

15. Raising evidentiary issues on appeal

1. If a trial court overrules an objection, then appellant cannot raise alternative ground for excluding evidence on appeal. The appellant must stick with the argument raised below. State v. Mak, 105 Wn.2d 692, 719, 718 P.2d 407 (1986). See also § 11.7(1)(a)(ii) of the WSBA Appellate Practice Deskbook.

16. Law of the Case doctrine

1. On appeal. governed by RAP 2.5(c).

17. Raising new issues in a reply brief

1. “An issue raised and argued for the first time in a reply brief is too late to warrant consideration.” Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
2. Plan ahead! Make sure to include all assignments of error (and supporting arguments) necessary for the court to grant you the relief you are requesting, e.g., if asking for the reversal of a jury’s general verdict, challenge all claims that might support the verdict.
3. While parties cannot raise new issues in a reply brief, “parties can clearly cite additional authority on appeal in support of issues they have already raised.” Brutsche v. City of Kent, 164 Wn.2d 664, 671 n.3, 193 P.3d 110 (2008).

18. Incorporating arguments by reference

1. “We do not permit litigants to use incorporation by reference as a means to argue on appeal or to escape the [length] limits for briefs.” Diversified Wood Recycling, Inc. v. Johnson, 161 Wn. App. 859, 890, 251 P.3d 293 (2011).
2. Make space in your brief for important arguments. If you absolutely must, file a motion for an overlength brief rather than incorporate an argument by reference. See RAP 10.4(b).

19. Placing arguments in a footnote

1. After completing a draft of your brief, review footnotes to consider 1) whether they are necessary, and, if so, 2) whether they should be moved into the body of the brief.

20. Respondent’s failure to argue harmless error 

1. Respondent: be sure to consider harmless error
2. See, e.g., State v. Charlton, No. 55544-1-II, 515 P.3d 537, 547 (2022).