Lawyers make four critical mistakes in current appellate practice. First, many appellants' lawyers do not seem to understand that only some orders may be appealed. Second, appellants often lose their appeals because of the issues about which they argue have not been preserved in the lower court for appellate review. Third, many appellants are unsuccessful because they frame their argument without reference to the appropriate standard of review. Finally, the pressure of client’s expectations and filing deadlines often leads lawyers to become careless when preparing their briefs.
Appellants must know and adhere to court rules about the content, composition, and filing of appellate briefs. Disregarding the requirements of those rules can be fatal to an appellate argument, and a flagrant disregard could even lead to sanctions. Besides the technical requirements for briefs, appellants must pay attention to the completeness of their arguments. Another appellate-practice error is the disrespectful tone taken by some brief writers. Furthermore, judges are often hesitant to "make law" and thus be labeled judicial activists. Finally, appellate briefs should be free of typographical errors, misstatements, and inaccuracies, especially in citations to authority and pertinent facts.
Law professors should stress the importance of a professional appearance in course work and on exams—correct spelling, grammar, and citations. When certain court rules or orders particularly apply to subject matter, professors could simply make students aware of them. To foster effective brief-writing, professors might point out to students how judicial opinions often reflect the appellate briefs.
Stella J. Phillips,
Putting it all Together: Law Schools' Role in Improving Appellate Practice,
31 U. Ark. Little Rock L. Rev. 135
Available at: http://lawrepository.ualr.edu/lawreview/vol31/iss1/3