Appellate Practice Basics

1. Appellate Practice Basics February 22, 2019 Anoka county bar association CLE Kelsey R. Kelley, Assistant Anoka County Attorney

2. Preserving the Record in District Court • Raise any potential issues in the trial court. • Failure to raise an issue precludes review on appeal. • Only matters actually presented to the trial court will be reviewed on appeal. • Raise all issues and objections on the record in a timely manner. • If an issue is not apparent on the record, review will be denied. • The record on appeal is limited to matters filed with the court or appearing in a transcript. • Preserve all evidentiary objections. • Object before evidence is received by the court or reviewed by the jury. • State specific grounds for your objection and state all available grounds for objection. • If a ruling excludes evidence, make an offer of proof on the record. • Practice tips: • Summarize chambers conferences and bench conferences on the record as soon as possible. • If a judge will not give you a definite pretrial ruling on an issue, do not forget to object again during the trial to obtain a ruling. • Objections to jury instructions must be explicit on the record. Objections to opening statements and closing argument must be timely—do not wait to object out of politeness.

3. Deciding to Appeal • In standard civil cases, an appellant has 60 days from final judgment to perfect an appeal. An appellant then has 10 days to order necessary transcripts and file the request. • In standard criminal cases, an appellant has 90 days from judgment of conviction to perfect an appeal. An appellant then has 30 days to order necessary transcripts. • Missing the timeline to appeal is fatal and considered a jurisdictional defect. An appellant must file the notice of appeal and statement of the case within the 60/90-day deadline. • An appellant has an uphill battle on appeal, as the appellate court only reviews a case for errors of law. An appellate court gives great deference to the district court’s determinations. • An appeal is never appropriate for factual disputes at trial. • Consider the cost of appeal: An appellant must pay the filing fee, transcript fees, and attorney fees. • Practice tips: • Become familiar with the appellate e-filing system before you must file something. Do not wait until the last day. • Use a day-counting application online instead of personally counting out days. • Ask colleagues for documents they successfully used in the past for initiating appeals.

4. Briefing • The court reporter must deliver transcripts after 60 days of receiving the request for transcripts. • When the last transcript is received, the appellant has 30 days in civil cases and 60 days in criminal cases to file a brief. The appellant should always include the order being appealed from in the addendum of the brief. • Once the appellant’s brief has been filed, the respondent has 30 days in civil cases and 45 days in criminal cases to file a brief. • Once the respondent’s brief has been filed, the appellant has 10 days in civil cases and 15 days in criminal cases to file a reply brief. • If you have asked for oral argument, be sure to file your conflict dates. • Practice tips: • Review briefs from appellate practitioners to get a feel for the formatting and style of an appellate brief. • You no longer need to include unpublished cases in the addendum to appellate courts in Minnesota.

5. Briefing Tips • Select only a few issues to raise on appeal. • Most appeals involve only a small fraction of possible issues. • Keep it short and concise. Most briefs can be done in under 25 pages. • Cite meaningful authority—not every possible case on the topic. • Be sure to confront the roadblocks in your case—do not let your opponent do it for you. This is your first chance to build credibility with the court as your case moves through the appellate process. • Be specific about the relief you want—reversal, remand, affirmance, etc. • Be selective about what you put in the addendum. An appellate court has access to the entire record. It is not necessary to attach the record to a brief. • It is important to be precise about proofreading and proper Bluebook citations. Judges appreciate and expect polished briefs. • Ask a colleague to read your brief and provide feedback. • Most important: Use and apply the standard of review.

6. Oral Argument • At the Minnesota Court of Appeals, an appellant receives 15 minutes for oral argument and 5 minutes for rebuttal. A respondent has 15 minutes for oral argument. • At the Minnesota Supreme Court, an appellant receives 35 minutes for oral argument, and the respondent has 25 minutes. An appellant may reserve time for rebuttal. • This is the time for the court to ask you questions. This is not your time to give your perfect presentation. The court’s questions are opportunities, not problems. • Practice tips: • Answer the questions you are asked. Do not dodge issues just because they are difficult for your case. • Be prepared by being familiar with important cases on both sides, the record, and the trial court’s decision. • Do a moot argument with colleagues in advance.

7. Decision • The Minnesota Court of Appeals will issue an opinion within 90 days of the oral argument or nonoral conference date. The Minnesota Supreme Court does not have a deadline to file its opinions. • Within 30 days of the filing of the court of appeals’ opinion, a party may file a petition for further review to the Minnesota Supreme Court. A response to the petition is due 20 days later.

8. How a Case Moves Through the Court of Appeals A Former law clerk’s perspective