tant, list the intervals. But including details
not relevant to the issues presented on
appeal leads the reader down a path that
almost certainly detracts from the real
focus. Such clutter also sacrifices brevity
with no corresponding benefit.
A hypothetical shows the difference. In
an appeal from the grant of a motion to
dismiss, a cluttered paragraph may read:
On February 1, 2010, Plaintiff filed
his complaint against Defendant. On
February 28, 2010, the parties stipu-
lated that Defendant could have up to
and including April 1, 2010 in which
to answer or otherwise respond to
the complaint. On March 28, 2010,
Defendant filed a motion to dismiss,
arguing that service was not properly
effectuated and that she owed Plaintiff
no duty. On April 12, 2010, the par-
ties stipulated that Plaintiff could have
up to and including May 20, 2010 to
file his response to the motion to dis-
miss. On April 18, 2010, the superior
court entered an order confirming the
parties’ April 12, 2010 stipulation.
On May 20, 2010, Plaintiff filed his
response to the motion to dismiss. On
May 30, 2010, Defendant filed her
reply in further support of the motion
to dismiss. On June 15, 2010, the
superior court set oral argument on
the motion for July 12, 2010. Given
scheduling conflicts, on June 22, 2010,
the parties stipulated that oral argu-
ment would be reset to July 19, 2010.
On June 27, 2010, the superior court
entered an order confirming the
www.azbar.org/AZAttorney 37 DECEMBER 2013 ARIZONA ATTORNEY
Any trial court win also might be
appealed, reversed and a new trial
required, based on how properly preserved
appellate issues are finally resolved.
Appellate lawyers’ participation in raising and arguing such issues throughout
the litigation emphasizes those concerns by increasing the likelihood of an
appeal, no matter who wins at trial. It
also encourages reasonable settlements
before clients incur that uncertainty,
expense and delay.
Making a Record. Making a proper
trial court record is required to preserve issues and arguments for appeal.
Failure to do so may waive them. The
purpose in making that record is not
simply to attempt to create reversible
error, assuming the client will lose and
become an appellant. It is also to seek
to win on the legal and procedural issues
required to obtain favorable, legally sustainable rulings, as part of three-dimensional litigation strategies.
Making a record must be done thoughtfully and for good reasons, so the trial court
doesn’t inadvertently create reversible error
by accepting legally unsound arguments.
Appellate lawyers can take the lead in doing
so, based on their familiarity with appellate
requirements and limitations.
Designing and Pursuing Strategies.
Litigation is framed in its initial pleadings.
Appellate lawyers can help ensure they
state or contest all necessary facts and
assert all legally appropriate claims, theo-ries or defenses. The dispute also might
settle favorably prior to litigation ever
being filed by arguing the strengths and
weaknesses of the parties’ respective factual and legal positions, including possible
appellate issues, through a mediator or
Appellate lawyers then can be primarily
responsible for accomplishing multi-dimen-sional strategies’ legal and procedural
objectives by preparing necessary legally
based disclosures, interrogatories, document requests,
motions, responses, pretrial
statements and jury instructions. Trial counsel should
Writing Appellate Briefs
Making a record
must be done
thoughtfully and for
good reasons, so the
trial court doesn’t
PAUL G. ULRICH is a solo lawyer in Phoenix.
His practice emphasizes civil appeals and related litigation.
continue to take primary responsibility for
fact-based disclosures, written discovery
and depositions. However, appellate lawyers can second-chair them to ensure they
develop all necessary facts concerning legal
and procedural issues as well.
Appellate lawyers’ assistance can continue throughout trial and post-trial proceedings. Trial counsel then continue to remain
responsible for examining witnesses and
presenting other evidence. However,
through prior cooperative planning and by
sitting at counsel table, appellate lawyers
can help ensure all relevant facts are
presented, or objections made, to establish
clients’ legal claims and defenses. They also
can prepare and argue any motions, jury
instructions and other legal issues that
Adding Value. Adding appellate lawyers
to trial court litigation teams can make the
difference between winning and losing,
both in the trial court and on appeal.
Thoughtfully managed, cooperative,
three-dimensional litigation strategies then
permit pursuing and presenting all relevant
facts, legal and procedural issues most
cost-effectively, resulting in better-quality
representation, cost savings and improved
results. AZ AT