Friday, August 16, 2013

Preserving issues for federal appeals + advice from Sykes

What?! No DJ profile today? SCAN needs content so please send along your proposed posts.

Here's a link to an article of note, Preserving Pretrial Issues for Appeal, in last month's ABA's Litigation Section newsletter that discusses circuit splits regarding tentative or conditional rulings:
Before 2000, the federal courts diverged on whether a pretrial motion required renewal during trial to preserve the issue for appeal. Some courts required a renewal at the time the evidence was offered at trial despite the fact that the issue of admissibility was previously ruled on in limine. Other courts did not require an objection or renewal during trial so long as the trial court judge had previously ruled on the issue. In response to the differing views held by the federal courts, Federal Rule of Evidence Rule 103(a) was amended in 2000 to provide that once a court has made a definitive ruling admitting or excluding evidence, either at or before trial, it is not necessary to renew an objection to preserve a claim for appeal. ... Theoretically, Rule 103(a) should have cleared the murky water concerning when an objection was required during trial to preserve an issue for appeal. Instead, the federal courts have been grappling with the definition of a “definitive ruling” in the context of Rule 103(a), which has led to uncertainty for litigants throughout the country. However, a survey of several federal court rulings interpreting Rule 103(a) post-amendment provides guidance and identifies a host of hazards to sidestep when dealing with the issue of preserving issues for appeal following a pretrial ruling. In practice, this has led to four areas of which litigants should be aware: (1) tentative or conditional rulings, (2) the scope of the ruling, (3) rulings made without prejudice, and (4) a court’s willingness to reconsider. This article explores various courts’ rulings in such circumstances.
Circuit split

Further, the current volume of Litigation (Summer 2013), the ABA's Litigation Section magazine, has a "from the bench" article by 7th Cir. Judge Diane Sykes titled "Advice for Appellate Litigators." The upshot?
  • appellate judges are generalists with a huge caseload
  • "focus, organization, clarity and brevity" are essential
  • don't overspin the facts or overreach on the law
  • attacks on the trial judge or opposition is "bad form"
  • use party names; avoid acronyms and string citations; use footnotes sparingly
  • use headings that are complete thoughts that "say something"
  • keep briefs brief; proofread
  • Say "May it please the court"
  • Know how to pronounce the judges' names
  • "Never speak over or interrupt a judge"