Initiating an Appeal in Civil Cases by 9th Circuit Practitioners

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.

Faith Pincus

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