1. See, e.g., Bed Mart Inc. v. Kelley, 45 P.3d
1219 (Ariz. Ct. App. 2002) (denying
fees in breach of contract action where
applicant failed to provide a legal basis for
awarding fees on appeal).
2. See Ninth Circuit Court of Appeals, Standards of Review (July 2014), available
3. Rule 111(C)( 1), Ariz.R.S.Ct.
4. Walden Books Co. v. Ariz. Dep’t of Rev.,
12 P.3d 809, 814 (Ariz. Ct. App. 2000)
(“mak[ing] it improper to cite unpublished decisions as authority,” which
“appl[ies] to memorandum decisions
from any court”); see also Kriz v. Buckeye
Petroleum Co., Inc., 701 P.2d 1182, 1185
n. 3 (Ariz. 1985).
5. State Compensation Fund v. Symington,
848 P.2d 273 (Ariz. 1993).
are familiar with current BLUE-
BOOK citation formats, and you
should be too. Do not annoy the
people deciding your case by not
doing your job right. Since January 1, 2015, you have been able
to cite memorandum decisions of
Arizona state courts for persuasive value, but only if they were
issued on or after January 1,
2015, no opinion adequately addresses the issue before the court,
and the citation is not to a depublished
opinion or depublished portion of an
opinion. 3 The rule changes also allow you
to cite decisions from other jurisdictions,
as permitted by that jurisdiction. If cited
on a point of Arizona law, the decision
must comply with the requirements listed
above for Arizona decisions. Be careful
not to cite unpublished decisions that do
not fit within these new rules. Prior precedents addressing citing unpublished decisions will continue to be applied to citations that do not fit within the new rules,
and could rise to the level of sanctionable
The parties also must cite the record
properly. This not only makes the judges’
jobs easier, it makes you a more credible
advocate. If you cite a portion of the record that does not support what you are
saying, or if you do not know whether
something is in the record, the judges
may question the validity of your whole
argument. Likewise, do not stretch the
holding of a case or omit a key component of a case that is not in your favor.
Judges’ clerks research the cases cited to
ensure they stand for the proposition cited. Stretching the case law may contribute to you losing your appeal. It also colors your reputation for future cases. When
citing law or facts, be detailed and accurate in your citations.
Remember that special
actions are “special” and
that most are summarily
declined. Whether to accept jurisdiction
over a special action is highly discretion-
ary. 5 The rules for special actions are not
the same as the rules governing other ap-
peals, so read them. Also, appellate special
actions have a different rule (Rule 7) than
special actions filed in Superior Court.
If you are seeking a stay from the ap-
pellate court, remember that you must
first request a stay from the trial court
before requesting from the Court of Ap-
peals. The Court of Appeals will not en-
tertain a motion to stay the lower court
proceedings unless the trial court already
has denied a stay request.
Another important thing to remember
is that the only record before the appellate court is the special action pleadings
and their attachments. The trial court record is not sent to the appellate court, nor
are transcripts of trial court proceedings.
If you want the appellate court to know
about something, you have to put it in the
special action record.
As mentioned above, the purpose of
a petition seeking discretionary review is
different from a brief on the merits. If
you are seeking review, you want to make
your case sound interesting with a legal
issue that applies to many people. If you
are opposing review, you want the court
to believe the legal issue is boring and
the only person who will ever be affected
by the lower court decision is the petitioner.
Oral argument should be
regarded as an extension of
your written work and a
time when you get to dialogue with the
court. Prepare for oral argument by thoroughly knowing the briefs and the record.
Review the opposing side’s briefs to iden-
tify your weak points so that you can
anticipate questions from the court. The
court is generally going to want to know
more about your weak arguments than
your strong ones! Be honest with
yourself and the court about your
weaknesses. It does not help the
court or your position to deny
the possibility that you are wrong
(especially if the lower court
ruled against you).
Be happy when the judges
ask questions. You have presumably made your arguments in the
briefs, so the best use of your oral
argument time is to answer the
judges’ questions. Many lawyers act as if
questions are just interruptions to their
arguments. In fact, questions are a sign
that the judges are interested in your case
and want assistance in understanding it.
Give that assistance and give it when the
question is asked. Do not put the question off until later in your argument. You
may never get back to it. You also run the
risk of annoying or insulting the panel
by dismissing their questions. Answering
questions is the most effective use of your
oral argument time.
The appellate process can be a daunting
one, and attorneys should consider using
an experienced appellate advocate to handle the appeal. For those who decide to
take an appeal themselves, however, these
ten tips should help you navigate the process and more effectively present your case
to the court.
10 Tips for Effective Appellate Advocacy
Each judge handles hundreds
of cases a year, so you have
little time to grab their
attention. Do not waste it.