Topics for August 22, 2006: 1'Introduction to the course 2'The appellate process and appellate juris

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Topics for August 22, 20061. Introduction to
the course2. The appellate process and
appellate jurisdiction3. Beginning work on the
appeal transcripts, the record, and abstracts

• Appellate Writing Advocacy
• Fall 2006
• Professor Price

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Appellate Writing and Advocacy
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Course goals

• Appellate litigation experience
• Appellate brief-writing experience
• Oral argument experience

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Additional course information

• One problem, two issues, working in pairs
• Grades
• 30 class work, 40 final draft of brief, 30
  oral argument
• Final draft will be graded anonymously
• MULS grading policy applies (no more than 30
  honors grades)
• Major dates
• Point headings and individual sections of the
  argument, 9/26
• Conferences the week of 10/10
• Final draft, 10/31
• Practice oral arguments the week of 11/7
• Final oral arguments, 11/17 11/18

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Additional course information

• Textbooks
• Beazley
• Frederick
• Course webpage
• Read the syllabus and ask any questions you have.

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About the Moot Court Program

• Jenkins Competition
• 16 students, in 8 teams
• briefs due in February
• arguments in March and April
• http//law.marquette.edu
• National Competition teams
• Moot Court Board (and Executive Board)

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Questions?
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Your appeal

• http//law.marquette.edu/cgi-bin/site.pl?10913dfC
  ourse_courseID786

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Introduction to the appellate process

• Key to persuasion know your audience!
• http//www.uscourts.gov/fcmstat/index.html

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Be the sun . . .

• Aesops fable of the North Wind and the Sun
• The Wind and the Sun were disputing which was the
  stronger. Suddenly they saw a traveler coming
  down the road, and the Sun said "I see a way to
  decide our dispute. Whichever of us can cause
  that traveler to take off his cloak shall be
  regarded as the stronger. You begin." So the Sun
  retired behind a cloud, and the Wind began to
  blow as hard as it could upon the traveler. But
  the harder he blew the more closely did the
  traveler wrap his cloak round him, till at last
  the Wind had to give up in despair. Then the Sun
  came out and shone in all his glory upon the
  traveler, who soon found it too hot to walk with
  his cloak on.

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How does a case move through the Wisconsin state
appellate court system?

• http//www.courts.state.wi.us/about/organization/m
  oves.htm

Wisconsin Supreme Court
Wisconsin Court of Appeals 16 judges, in 4
districts
Wisconsin Circuit Courts A single-level court,
with 241 judges, in 72 counties
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How does a case move through the federal
appellate court system?

• http//www.uscourts.gov/images/CircuitMap.pdf

United States Supreme Court
Circuit Courts of Appeals 12 regional circuits,
and the Federal Circuit
United States District Courts 94 judicial
districts
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Jurisdiction in courts of last resort

• Wisconsin Supreme Court
• Petitions for Review
• Certification from the Court of Appeals
• Petitions to Bypass the Court of Appeals
• Original Actions
• Direct Review

• United States Supreme Court
• Certiorari
• Original Actions

http//www.courts.state.wi.us/about/organization/m
oves.htm
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Jurisdiction in intermediate courts of appeal

• Wisconsin Court of Appeals
• Appeals from final orders
• Appeals with permission
• Administrative appeals

• Federal Circuit Courts of Appeal
• Appeals from final orders
• Appeals with permission
• Special jurisdiction

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Finality, non-finality, and collateral review

• http//straylight.law.cornell.edu/uscode/html/usco
  de28/usc_sup_01_28_10_IV_20_83.html

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Sufficiency and timeliness of appeal

• Notice of appeal
• typically filed in trial court, not appeals court
• time computed carefully and strictly
• http//folio.legis.state.wi.us/cgi-bin/om_isapi.dl
  l?clientID42717365infobasestats.nfojumpch.20
  808
• http//caselaw.lp.findlaw.com/casecode/uscodes/28/
  parts/v/chapters/133/sections/section5F2107.html

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Federal Rules of Appellate Procedure

• Rule 3(c) Contents of the Notice of Appeal
• Rule 4(a) Appeal in a Civil Case
• Rule 4(b) Appeal in a Criminal Case
• Rule 26 Computation of Time

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Beginning work on your appeal

• Transcripts and the record

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Composing and Compiling the Record

• The circuit court clerk compiles the record and
  notifies the parties.
• Counsel inspects the record and has time to
  object, correct, or supplement it.

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Items Comprising the Record

• The final judgment or order being appealed
• Any related court opinion
• Pleadings and other relevant filings
• Any relevant order made after judgment
• Any exhibits material to the appeal
• Any other paper or exhibit filed with the court
  and which a party asks to have included in the
  record
• The notice of appeal
• The bond
• Any relevant transcript
• The certificate of the circuit court clerk

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Tips on Checking the List of Record Items

• Double-check the clerks judgment.
• Check for briefs you submitted to the circuit
  court material to issues on appeal are included.
• Check that all other documents you want are
  included.

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Requesting and Filing the Transcript

• Within 14 days of filing a notice of appeal, an
  appellant must file a statement on transcript,
  that transcripts have been requested from the
  court reporter or that no transcript is needed.
• A court reporter prepares, files, and serves the
  transcript.
• Review it for errors.

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Timing in Transmitting the Record to the Court of
Appeals

• The record, including the transcript, must be
  transmitted to the court of appeals within 20
  days of filing the transcript in the circuit
  court, or within 20 days of filing additional
  portions of the record. Wis. Stat. 805.15(5).
• The record may not be filed more than 90 days
  after the notice of appeal is filed.

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Avoiding Delay in Transmitting the Record

• File the statement of transcript with the notice
  of appeal.
• Select only those portions of the transcript
  necessary to address the issues on appeal.
• Follow up with both the court reporter and the
  court clerk.

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Motions to Supplement or Correct the Record

• If the record is defective or omits materials
  essential to an understanding of what occurred at
  the circuit court. (Wis. Stat. 809.15(3) or
  FRAP 10 and 11.)
• File a motion as soon as possible after
  discovering an error.

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Supplementing the Record by Judicial Notice

• A court may take judicial notice of a wide
  variety of facts.
• A court may take notice of facts that are either
  generally known or within the courts
  jurisdiction, or those facts capable of accurate
  and ready determination.

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Creating an Abstract of the Record

• An abstract is a summary of the documents in the
  record, noting the page number of key facts,
  decisions, etc.
• Create a chart including the page number and
  document, along with your notes.
• Abstract both
• the lower courts decisions (circuit courts
  written or oral decision and court of appeals
  opinion), and
• all of other documents in the record.

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Material to Include in an Abstract

• Positive facts, testimony, and evidence
• Negative facts, testimony, and evidence
• Any appendices, and what they consist of
• Identify exhibits introduced at trial, and when
  (and if) they were admitted
• Evidence establishing the elements of a claim
• (continued)

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Material to Include in the Abstract

• Legal findings
• Major arguments on both sides
• Concessions or stipulations
• Information supporting policy arguments
• Any other information that seems important

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Abstract exercise

• Sample format for an abstract
• http//law.marquette.edu/cgi-bin/site.pl?10913dfC
  ourse_courseID786

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For next time

• Download and review the record.
• Contact me immediately if you have trouble
  downloading or printing it.
• Find a partner.
• Create an abstract of the record.
• Well cover standards of review, and discuss the
  issues in the problem.
• So, start your research.
• Feel free to contact me before class if you have
  questions.