Appellate Practice tips Presented by Justice James W. Hardesty

1. Appellate Practice tipsPresented byJustice James W. Hardesty Washoe County Bar Association May 9, 2012

2. Pending Cases by CategoryJanuary 1 to December 31, 2011

3. What Should I Be Thinking About Before Filing an Appeal? • From the day you accept representation, you should be thinking about the possibility of an appeal. • Read the rules! • Make your factual record, raise your arguments, and make objections in district court (or in administrative matters, before the hearing officer) – you can’t introduce evidence or make new arguments for the first time on appeal, and any error at trial is waived absent a contemporaneous objection. Mason v. Cuisinaire, 122 Nev. 43, 128 P.3d 446 (2006) (rejecting due process challenge to underlying decree because asserted for the first time on appeal); Carson Ready Mix v. First Nat’l Bk., 97 Nev. 474, 635 P.2d 276 (1981) (stating that this court’s review is limited to record before the district court); Munoz v. State, State ex rel. Dep’t of Hwys., 92 Nev. 441, 552 P.2d 42 (1976) (holding that even a constitutional issue is waived if not raised below). • On rare occasions, the court has entertained arguments raised for the first time on appeal. See, e.g., Nevada Power Co. v. Haggerty, 115 Nev. 353, 365 n.9, 989, 870, 877 n.9 (1999) (addressing a purely legal argument raised by amicus); Desert Chrysler-Plymouth v. Chrysler Corp., 95 Nev. 640, 643-44, 600 P.2d 1189, 1191 (1979) (considering constitutional issue raised for first time on appeal); Kirkpatrick v. Dist. Ct., 119 Nev. 66, 70 n.8, 64 P.3d 1056, 1059 n.8 (2003) (citing McNair v. Rivera, 110 Nev. 463, 468 n.6, 874 P.2d 1240, 1244 n.6 (1994)) (noting that “this court can consider constitutional issues sua sponte”); Grey v. State, 124 Nev. 110, 120, 178 P.3d 154, 161 (2008) (“‘Failure to object below generally precludes review by this court; however, we may address plain error and constitutional error sua sponte.’”) (quoting Sterling v. State, 108 Nev. 391, 394, 834 P.2d 400, 402 (1992)). Such exceptions should not be relied upon; however, making an adequate record in district court is always preferable.

4. Before Filing an Appeal Cont. • For summary judgment practice see Schuck v. Signature Flight Support, 126 Nev. ___, 245 P.3d 542 (2010); Choy v. Ameristar Casinos, 127 Nev. ___, 265 P.3d 698 (2011). • Whether a motion in limine is sufficient to preserve an issue for appeal must be evaluated carefully. SeeBMW v. Roth, 127 Nev. ___, 252 P.3d 649 (2011). • If you prepare the district court order, make it as complete as possible – with findings of fact (or statements of undisputed fact for summary judgments) and conclusions of law – this greatly aids review. In particular, when the ruling rests on the facts, include the pertinent facts in the order, e.g., in termination of parental rights cases, don’t simply state that certain grounds of parental fault exist – include the relevant facts for the particular fault. • If the district court prepares the order, seek amendment if necessary to address your issues/concerns. • Where factual determinations rest on credibility determinations, say so! • Make sure the order is final and appealable – don’t leave any claims or parties hanging because no one “intends” to pursue them or there’s a verbal stipulation. A filed, written order resolving all claims as to all parties is necessary for finality. Lee v. GNLV Corp., 116 Nev. 424, 996 P.2d 416 (2000); KDI Sylvan Pools v. Workman, 107 Nev. 340, 810 P.2d 1217 (1991). • If your appeal will be based on an NRCP 54(b) certification of finality, make sure it completely removes a party and includes the specific findings required by the rule. Mallin v. Farmers Insurance Exchange, 106 Nev. 606, 797 P.2d 978 (1990); Aldabe v. Evans, 83 Nev. 135, 425 P.2d 598 (1967).

5. Why Must My Client and I Attend A Supreme Court Settlement Conference? • If your appeal is placed in the settlement program, participate in good faith and provide sufficient information in the settlement statement to familiarize the settlement judge with your position. See generally NRAP 16. • The docketing statement’s primary purpose is to allow this court to assess jurisdiction, not to pre-argue the appeal. NRAP 14(a)(4). • If you prepare the docketing statement, answer all questions completely and attach all requested documents – don’t say everything is resolved when claims remain pending, make sure to attach ALL orders resolving claims or parties (not just the one being appealed), and include all complaints, counterclaims, cross-claims, or third-party complaints. • If you are a respondent, don’t file a response to the docketing statement unless it relates to jurisdiction – the time to argue the issues on appeal is in the answering brief. • If you get an order to show cause regarding jurisdiction, address the concerns stated in the order or admit candidly that the defect exists. Be careful of citing older jurisdiction cases that have been superseded by later rule amendments. The most common situations are cases regarding NRCP 54(b) before it was amended to permit certification only when an order completely removes a party (rather than a claim) and cases predating NRAP 4(a)(6)’s current form, which permits certain premature notices of appeal to be effective. • If a defect can be quickly and easily cured, you may offer to do so, but don’t ask this court to hold indefinitely an appeal from a clearly non-final order.

6. They Don’t Really Read The Briefs, Do They? • Stephen V. Armstrong & Timothy P. Terrell, Thinking Like a Writer, A Lawyer’s Guide to Effective Writing and Editing. • Concise, pertinent arguments are best; don’t miss issues so they are preserved for appeal, but don’t waste time and space on irrelevant matters. • Point out the flaws in the other side’s arguments and authority, but don’t ridicule them, especially pro se litigants. • Cite to evidence to support factual assertions – not to attorney statements or argument in motions or hearings. Jain v. McFarland, 109 Nev. 465, 475-76, 851 P.2d 450, 457 (1993). • Apply the correct standard of review – including, for administrative matters, the standard of the district court’s review of the administrative decision. • For administrative cases, double-check the applicability of the Administrative Procedures Act – is it not really a contested matter or otherwise excluded from the Act? • Try to avoid block quotes, particularly long block quotes, in the brief’s text – just quote or paraphrase the relevant language and include the full text in an addendum. If a statute is commonly-used in that type of matter, the court and staff will be familiar with it. • Appellant should always file a reply brief in order to preserve right to rebuttal at oral argument.

7. They Want Oral Argument? What Does That Mean and What Should I Do to Prepare? • View webcasts of oral arguments in other cases. • There is no need to utilize a portion of your 15 minutes of argument to discuss the facts of the case unless you receive a specific question from the Justices. • Most cases set for oral argument have been previously assigned to one Justice to prepare a bench memorandum; many times the assigned Justice will ask the most questions during oral argument to clarify issues. • If a Justice asks a question about a specific legal issue, be sure to comment if the issue was not raised by the opposing party in district court. • Be concise in your response to a Justice’s question in oral argument. • Be sure to reserve part of your 15 minutes argument time for rebuttal if you are representing the appellant. • If there have been a number of questions by the Justices, be sure to ask the Chief Justice or the Presiding Justice if you can have additional time to complete your oral argument.

8. Ok, the Case is Submitted but What Does That Mean and When Will They Decide? • Review the Internal Operating Procedures for the Nevada Supreme Court which can be found on the Court’s website. • Draft dispositions are due within 60 days from date of submission in panel cases and 90 days from date of submission in en banc cases. • A concurrence and/or dissent is due within 45 days of circulation of a draft disposition. • Editing process is extensive.

9. Cases Decided in 2011Time on Docket By Case Category(Docket to Disposition)

10. We lost, But They Missed Something. Oh, What To Do? Rehearing and En Banc Reconsideration • Tailor your argument to the standard in the applicable rule: NRAP 40 for rehearing and NRAP 40A for en banc reconsideration – don’t simply rehash the arguments in your brief. • Point to the parts of the record or to the authority supporting your arguments. • Rehearing is directed to the Justices that already heard the panel case, so they will be familiar with it; en banc reconsideration, however, is also directed at four Justices who are unfamiliar with your case – keep that in mind when drafting the petition.

11. Writ Petitions • Cite to this court’s authority regarding the standard for writ relief and tailor your arguments to that standard – it’s not the same as an appeal. See generally NRS Chapter 34; International Game Tech. v. Dist. Ct., 124 Nev. 193, 197, 179 P.3d 556, 558 (2008); Pan v. Dist. Ct., 120 Nev. 222, 88 P.3d 840 (2004). • This court is not familiar with the underlying matter – your petition must therefore explain the factual and procedural background. • NRAP 21 now incorporates NRAP 30 – you must include an appendix of all necessary documents, sequentially numbered. • Most writ petitions are summarily denied – don’t file writ petitions unless authority and the circumstances establish that this court’s intervention is appropriate. SeeSonia F. v. Dist. Ct., 125 Nev. ___, 215 P.3d 705 (2009). Timing requirements for filing a notice of appeal don’t apply to writ petitions, but don’t delay filing one if you intend to do so. • Serve the district judge. NRAP 21(a)(1). • Include the affidavit required by NRS 34.170 or 34.330. • Attach a copy of the district court’s filed, written order from which you seek relief.

12. Appendix • Follow the rule – put the documents in chronological order, include file-stamped copies of district court documents, and number the pages sequentially. • Remember – we only have what you give us – don’t unnecessarily enlarge the appendix, but include everything we need to evaluate the appeal or writ petition. • Digital transmission of record on appeal.

13. Motions • Don’t file unnecessary motions or unnecessarily oppose procedural motions such as those for extensions of time; in particular, a brief that’s a week late is not grounds for dismissal. • For stays pending appeals, seek a stay in the district court first, or your motion will be denied on that basis alone. NRAP 8(a)(1). • If the appendix has not yet been filed and additional documents are necessary for this court to rule on your motion, include an appendix with all pertinent documents, pages sequentially numbered – this is not required by NRAP 27, but with the advent of e-filing, sequential numbering greatly eases the court’s ability to reference the correct page.

14. Emergencies • Follow NRAP 27(e) regarding the emergency certificate, and include it. • State on the cover page, clearly and prominently, the date by which action must be taken. • Don’t file your motion after that deadline has already passed, e.g., don’t try to stay a trial by filing your motion on the second day. • Don’t be afraid to call the clerk’s office and confirm that your matter has been docketed and flagged as an emergency and that the correct deadline has been identified. • If you were not able to provide a document necessary for this court’s review – for example, a written order had not yet been filed – supplement the motion or petition as soon as the document is available; it will get your matter addressed more quickly.