Thursday, March 17, 2011

The standard of review: it means something, folks

Free appellate advice from Howard Bashman and the Seventh Circuit:
Judge Posner offers this practice pointer for appellate advocates:

We'll state the facts as favorably to the plaintiffs as the record permits, as we must given the procedural posture. The statements of facts in the defendants' briefs present the evidence they'd like a jury to accept, rather than just the evidence that, being unrefuted or irrefutable, provides a permissible basis for a grant of summary judgment. Such a mode of presentation is unhelpful to the court.

No doubt it pains many advocates to actually set forth the evidence in the light most favorable to the opposing party in an appellate brief, but failing to do so (when it is necessary to do so under the applicable standard of review) can inflict real harm on your own client's chances of prevailing on appeal.
Amen. You are setting yourself up to get hamstrung on the response/reply brief. If you can't win the case on the correct standard of review, then why are you appealing?

1 comment:

  1. Nice bit.

    There are few moments better in advocacy than the moment when you realize your opponent has grossly overplayed their hand.

    This is one of them