Appellate Practice (Part 3)

L. Oral Argument.

It is the mark of a novice to attempt to read a brief or outline before a panel of appellate judges. Any such presentation will be interrupted by an exasperated judge and the lawyer thrown off his game.

Assume that the judges have read the briefs and prepared lines of questioning to test the arguments of both sides. In preparing for oral argument, outline the most likely questions and the most difficult questions, and prepare succinct responses to all of them.

Review the court’s rule on oral argument in order to avoid any inadvertent breach of protocol.[90]

Practice your presentation and your responses to all foreseeable questions. While not every appellate case merits a full blown moot court exercise, practice before office personnel, your family, or at least your mirror. Each time you practice, cut out unnecessary words.

If you plan to use the court’s technology for presentation of visual aids, ask permission of the clerk to familiarize yourself with its operation in advance.

It is often useful to take to the podium a folder in which are taped overlapping index cards on which you have legibly written key points of cited authorities and responses you have prepared for anticipated questions. While it is best to be able to speak without notes, this can be a useful crutch if you get stuck.

When you arrive for oral argument, check in with the clerk. If offered the option of five or fifteen minutes, take fifteen. You can use less time than you choose but not more.

Try to be conversational with the judges. Even if you know the judges personally, maintain decorum by addressing them respectfully as "Judge __" and "your honor." If you have had prior conversations with them about football or hunting, it is easier to maintain a relaxed, conversational tone about issues in your case.

View the judges’ questions not as annoying interruptions in a planned speech but rather genuine opportunities to clear up their concerns and persuade them of the rightness of your position. Perhaps the most confident approach to oral argument would be to simply say, "I know you have read the briefs. What questions can I answer for you?" The author of this paper has never been that bold.

Prepare well in advance so you can just review your notes the day before oral argument and get a really good night’s sleep the night before. For habitual procrastinators that is a lot to ask, but strive to make it happen.

M. Certiorari.

Now that the Appellate Jurisdiction Reform Act has given the Court of Appeals original appellate jurisdiction in all but a few narrow classes of cases, almost all appeals will start in the Court of Appeals rather than Supreme Court. After the Court of Appeals rules in a case, a losing party may seek another round in the Supreme Court. Within 10 days after entry of judgment or disposition of a motion for reconsideration in the Court of Appeals, the losing party must file a notice of intention to apply for certiorari shall with the Clerk of the Court of Appeals. Within 20 days from entry of such a disposition in the Court of Appeals, the petition for certiorari must be filed with the clerk of the Supreme Court.[91] Length is limited to 30 pages.[92] Certiorari is not given of right, and is limited to cases deemed to be of "gravity or great public importance,"[93] and is not granted to review the sufficiency of evidence.[94] Of course, the determination of "gravity or great public importance" is in the eye of the beholder.

N. Final thoughts.

There is no appeal from a settlement. Both sides bear a risk in appeals. Your client could lose an appeal when you least expect it, so if there is a reasonable opportunity to resolve a case before a final decision on appeal, resist the temptation to be cocky about how bullet-proof your case is.

And always go to the bathroom before you go to the courtroom.


[1] McFadden, Brewer & Sheppard, Georgia Appellate Practice with Forms (2016–2017 edition); Stephen Louis A. Dillard, Open Chambers Revisited: Demystifying the Inner Workings and Culture of the Georgia Court of Appeals , 68 Mercer L. Rev. 1 (Fall 2016); Michael B. Terry, Georgia Appeals: Practice And Procedure With Forms (2016); Nuts & Bolts of Civil Appellate Practice (Seminar Materials, ICLE in Georgia, 2017); Milich, Georgia Law of Evidence (Chapter 3); and Shigley & Hadden, Georgia Law of Torts: Trial Preparation & Practice (2016 edition)(Chapter 30).

[2] O.C.G.A. § 5-6-1 through 5-6-51.

[4] This section is based upon Shigley & Hadden, Georgia Law of Torts: Trial Preparation & Practice (2016 ed.)(Chapter 30), of which the presenter is co-author but John Hadden wrote this chapter.

[5] See generally McFadden, Brewer & Sheppard, Georgia Appellate Practice §9:5 (2015-2016 ed.) See also O.C.G.A. §24-1-103(d).

[6] Titelman v. Stedman, 277 Ga. 460, 460-61, 591 S.E.2d 774 (2003). But see State v. Morrell, 281 Ga. 152, 635 S.E.2d 716 (2006) (oral order may be appealable so long as it appears somewhere in record).

[7] Heard v. City of Villa Rica, 306 Ga. App. 291, 293-94, 701 S.E.2d 915 (2010).

[8] Pfeiffer v. Georgia Dept. of Transp., 275 Ga. 827, 828-29, 573 S.E.2d 389 (2002).

[9] Id.

[10] O.C.G.A. § 9-11-32(d)(1).

[11] O.C.G.A. § 9-11-32(d)(2) and (d)(3)(B).

[12] O.C.G.A. § 9-11-32(d)(3)(A).

[13] See Hall v. Clifton Precision, a Div. of Litton Systems, Inc., 150 F.R.D. 525, 27 Fed. R. Serv. 3d 10 (E.D. Pa. 1993).

[14] Bryant v. Food Giant, Inc., 184 Ga. App. 155, 361 S.E.2d 38 (1987).

[15] Haynes v. McCambry, 203 Ga. App. 464, 468, 416 S.E.2d 893 (1992).

[16] Jones v. Scarborough, 194 Ga. App. 468, 390 S.E.2d 674 (1990); Andean Motor Co. v. Mulkey, 251 Ga. 32, 302 S.E.2d 550 (1983).

[17] O.C.G.A. § 9-11-30(c)(2).

[18] See, e.g., Reno v. Reno, 249 Ga. 855, 295 S.E.2d 94 (1982) (oral motion).

[19] Studard v. Department of Transp., 219 Ga. App. 643, 466 S.E.2d 236 (1995). It should be noted, however, that this holding was based largely on a presumption that public employees were following the law.

[20] See generally Milich, Georgia Rules of Evidence §3:6 (2012-2013 ed.).

[21] Reno v. Reno, 249 Ga. 855, 295 S.E.2d 94 (1982).

[22] CSX Transp., Inc. v. Smith, 289 Ga. 903, 717 S.E.2d 209 (2011).

[23] Id.

[24] Automated Print, Inc. v. Edgar, 288 Ga. App. 326, 654 S.E.2d 413 (2007).

[25] Harley-Davidson Motor Co., Inc. v. Daniel, 244 Ga. 284, 260 S.E.2d 20 (1979).

[26] See, e.g., Givens v. State, 281 Ga. App. 370, 636 S.E.2d 94 (2006).

[27] See generally Ruskell, Davis & Shulman, Georgia Practice and Procedure §§20:5 to 20:12 (2015-2016 ed.).

[28] See, e.g., Elliott v. Home Depot U.S.A., Inc., 275 Ga. App. 865, 622 S.E.2d 77 (2005).

[29] Phillips v. State, 275 Ga. 595, 571 S.E.2d 361 (2002).

[30] Thomas v. State, 247 Ga. 7, 273 S.E.2d 396 (1981) (motion for further examination made on record).

[31] Ridgeway v. State, 174 Ga. App. 663, 330 S.E.2d 916 (1985).

[32] Georgia Power Co. v. Mozingo, 132 Ga. App. 666, 209 S.E.2d 66 (1974).

[33] See generally O.C.G.A. § 9-10-185 regarding improper conduct of counsel.

[34] Mullins v. Thompson, 274 Ga. 366, 553 S.E.2d 154 (2001).

[35] Benton v. Chatham County, 206 Ga. App. 285, 425 S.E.2d 317 (1992).

[36] Nationwide Mut. Fire Ins. Co. v. Rhee, 160 Ga. App. 468, 287 S.E.2d 257 (1981).

[37] CSX Transp., Inc. v. McCord, 202 Ga. App. 365, 414 S.E.2d 508 (1991).

[38] Horan v. Pirkle, 197 Ga. App. 151, 397 S.E.2d 734 (1990).

[39] See, e.g., Davenport v. State, 283 Ga. 171, 656 S.E.2d 844 (2008).

[40] See generally McFadden, Brewer & Sheppard, Georgia Appellate Practice §9:7 (2015-2016 ed.).

[41] Steele v. Department of Transp., 295 Ga. App. 244, 671 S.E.2d 275 (2008).

[42] Zohbe v. First Nat. Bank of Cobb County, 162 Ga. App. 604, 292 S.E.2d 444, 34 U.C.C. Rep. Serv. 362 (1982).

[43] Sasser v. Adkinson, 258 Ga. App. 699, 574 S.E.2d 907 (2002).

[44] James v. State, 196 Ga. App. 569, 396 S.E.2d 306 (1990).

[45] Varner v. State, 297 Ga. App. 799, 678 S.E.2d 515 (2009).

[46] O.C.G.A. § 9-11-50.

[47] Anderson v. Universal C. I. T. Credit Corp., 134 Ga. App. 931, 931-32, 216 S.E.2d 719 (1975).

[48] Lexmark Carpet Mills, Inc. v. Color Concepts, Inc., 261 Ga. App. 622, 626, 583 S.E.2d 458 (2003).

[49] Krause v. Vance, 207 Ga. App. 615, 619, 428 S.E.2d 595 (1993).

[50] Sun-Pacific Enterprises, Inc. v. Girardot, 251 Ga. App. 101, 104, 553 S.E.2d 638 (2001).

[51] Bailey v. Annistown Road Baptist Church, Inc., 301 Ga. App. 677, 689 S.E.2d 62 (2009).

[52] O.C.G.A. § 5-6-26.

[53] Fed. R. Civ. P. 50.

[54] Kelley v. State, 301 Ga. App. 43, 686 S.E.2d 810 (2009).

[55] O.C.G.A. § 5-5-24.

[56] Christie v. Rainmaster Irr., Inc., 299 Ga. App. 383, 682 S.E.2d 687 (2009); Golden Peanut Co. v. Bass, 249 Ga. App. 224, 547 S.E.2d 637 (2001).

[57] Golden Peanut Co. v. Bass, 249 Ga. App. 224, 547 S.E.2d 637 (2001). Federal courts do not follow this distinction. See Fed. R. Civ. P. 51.

[58] Id.

[59] Torres ex rel. Torres v. Tandy Corp., 264 Ga. App. 686, 592 S.E.2d 111 (2003) (cits. omitted).

[60] Thompson v. Ingram, 226 Ga. 668, 177 S.E.2d 61 (1970).

[61] Brannan Auto Parts v. Raymark Industries, 183 Ga. App. 82, 357 S.E.2d 807 (1987). But see Lynas v. Williams, 216 Ga. App. 434, 454 S.E.2d 570 (1995) (reaching contrary conclusion).

[62] Anthony v. Gator Cochran Const., Inc., 288 Ga. 79, 702 S.E.2d 139 (2010).

[63] Id. See also O.C.G.A. § 9-12-4; Surles v. Cornell Corrections of California, Inc., 290 Ga. App. 260, 659 S.E.2d 683 (2008).

[64] Anthony v. Gator Cochran Const., Inc., 299 Ga. App. 126, 682 S.E.2d 140 (2009), judgment vacated, 288 Ga. 79, 702 S.E.2d 139 (2010).

[65] O.C.G.A. § 5-7-2. The statutory exceptions involve crime or delinquency cases against juvenile. O.C.G.A. § 5-7-2(b).

[66] O.C.G.A. § 5-6-34(b); § 5-6-35(g); Riley v. State, 280 Ga. 267 (2006).

[67] O.C.G.A. § 5-6-39

[68] O.C.G.A. § 5-6-39.

[69] O.C.G.A. § 5-6-38(a).

[70] O.C.G.A. § 5-6-38

[71] O.C.G.A. § 5-6-77(g)(12); O.C.G.A. § 9-15-2,

[72] Roberts v. Nessim, 297 Ga. App. 278, 286–287 (2009)(on motion for reconsideration).

[73] O.C.G.A. § 5-6-42.

[74] O.C.G.A. § 5-6-38

[75] O.C.G.A. § 5-6-39(a).

[76] Ct. App. R. 23(a); S.Ct. R. 10; Ct. App. R. 4(b); R. 46; S.Ct. R. 13; Ct. App. R. 2(b), and 5 and S.Ct. R. 5.

[77] Ct. App. R. 28.

[78] Ct. App. R. 28(a).

[79] Arrington v. Collins , 290 Ga. 603, 604 (2012).

[81] Court of Appeals Rule 23(a).

[82] Court of Appeals Rules 16(a) and 23(a).

[83] Vick v. Tower Place, L.P., 268 Ga.App. 108, 109(2), 601 S.E.2d 348, 349 (2004).

[84] Crumity v. State, 321 Ga.App. 768, 769, 743 S.E.2d 455, 457, n.1 (2013); Jones v. State, 318 Ga.App. 342, 348(3)(a)(iii), n. 4, 733 S.E.2d 400 (2012).

[85] Bryan A. Garner, Garner's Modern English Usage (2016); Bryan A. Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2014); Bryan A. Garner, Legal Writing in Plain English (2d Ed., 2013); Bryan A. Garner, The Redbook: A Manual on Legal Style (3d ed., 2013); Antonin Scalia and Bryan A. Garner, The Art of Persuading Judges (2008).

[86] Chaparral Boats, Inc. v. Heath, 269 Ga. App. 339, 349-50, 606 S.E.2d 567, 575 (2004) (Barnes, J., concurring specially).

[87] Ct. App. R. 24.

[88] http://typographyforlawyers.com/ (last visited Feb. 22, 2017)

[89] See, e.g., Guide to Creating Electronic Appellate Briefs, Appendices, Hyperlinking (California Courts of Appeal, 2016), http://www.courts.ca.gov/documents/DCA-Guide-To-Electronic-Appellate-Documents.pdf (last visited Feb. 22, 2017); Brett Burney, How to Build Electronic Briefs, GP Solo (June 2010)(last visited Feb. 22, 2017).

[90] Ct. App. R. 28; S. Ct. R. 50-55.

[91] S.Ct. R. 38.

[92] S. Ct. R. 30.

[93] GA CONST Art. 6, § 6, ¶ V.

[94] S. Ct. R. 40.


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