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Strategies on Appeal

While other practice guides tell you how to litigate your appeal, Strategies on Appeal shows you how to win it!
Drawing on decades of experience handling and consulting on hundreds of appeals in state and federal courts, Myron Moskovitz, one of California’s leading appellate lawyers, distills the lessons he’s learned into one convenient resource.

While other practice guides tell you how to litigate your appeal, Strategies on Appeal shows you how to win it!

Drawing on decades of experience handling and consulting on hundreds of appeals in state and federal courts, Myron Moskovitz, one of California’s leading appellate lawyers, distills the lessons he’s learned into one convenient resource. Moskovitz explains step-by-step and through numerous examples his strategy for crafting your appellate brief to focus on the key tactical issues and the justice of your client's case.

Strategies on Appeal discusses not just the formalities of litigating an appeal, but also the practicalities, such as knowing how much legal research to do, the optimal way to organize your brief’s statement of facts and arguments, and the factors that go into determining whether to file a petition for review.

It includes ten sample briefs demonstrating the points made in the book.

Strategies on Appeal covers all aspects of the appellate process:

  • Setting up the appeal in the trial court and deciding whether to appeal
  • How to research, organize, and draft opening, responding, and reply briefs
  • Preparing and delivering an oral argument for maximum impact
  • Petitioning for review in the California Supreme Court
  • Writ review of non-appealable trial court orders
  • How to bill for appellate work
OnLAW CP94350

Web access for one user.

 

Available 10/5/21

$ 325.00
Print CP34350

softcover, 2021, updated biennially

 

$ 325.00

While other practice guides tell you how to litigate your appeal, Strategies on Appeal shows you how to win it!

Drawing on decades of experience handling and consulting on hundreds of appeals in state and federal courts, Myron Moskovitz, one of California’s leading appellate lawyers, distills the lessons he’s learned into one convenient resource. Moskovitz explains step-by-step and through numerous examples his strategy for crafting your appellate brief to focus on the key tactical issues and the justice of your client's case.

Strategies on Appeal discusses not just the formalities of litigating an appeal, but also the practicalities, such as knowing how much legal research to do, the optimal way to organize your brief’s statement of facts and arguments, and the factors that go into determining whether to file a petition for review.

It includes ten sample briefs demonstrating the points made in the book.

Strategies on Appeal covers all aspects of the appellate process:

  • Setting up the appeal in the trial court and deciding whether to appeal
  • How to research, organize, and draft opening, responding, and reply briefs
  • Preparing and delivering an oral argument for maximum impact
  • Petitioning for review in the California Supreme Court
  • Writ review of non-appealable trial court orders
  • How to bill for appellate work

1

How to Win an Appeal—General Principles

  • The Great Myth
  • Two Ways to Win
  • Think Strategically and Creatively
  • Myron’s “Rules”
    • “Rule” #1: Put Yourself in the Shoes of the Decider
      • How Do Appellate Judges Think?
      • How Appellate Judges Differ From Trial Judges
      • How You Can Learn How Appellate Judges Think
    • “Rule” #2: Judges Want to Do Justice
      • Where to Find Justice
        • Justice Between the Parties
        • Justice in the Larger Society
      • Justice Comes in Many Forms
      • How to Show the Justice of Your Cause
      • But What About “The Law”?
    • “Rule” #3: Don’t Be a Slave to “Tradition”
      • If You Follow These “Rules,” Will You Win?

2

Setting Up the Appeal in the Trial Court

  • Order a Court Reporter
  • Have the Court Reporter Present at Every Hearing
  • Objecting to Your Opponent’s Evidence
  • Resisting Objections to Your Evidence
  • Jury Instructions
  • Special Verdicts
  • Statements of Decision

3

Should I Appeal?

  • The Merits
  • The Expense
    • The Appeal Bond
    • The Transcripts
    • Attorneys Fees
  • The Risk
  • The Bottom Line

4

The Notice of Appeal

  • File on Time
  • Fill Out the Form Properly
  • Appeal From What Is Appealable
  • A Trap for the Unwary: Attorneys Fees
  • Another Trap for the Unwary: Pending Causes of Action

5

Preparing to Write the Appellant’s Opening Brief

  • Reviewing the Record
  • Get an Overview
  • Go Through the Court Documents
  • Go Through the Reporter’s Transcripts and Exhibits
  • Legal Research
    • What to Look For
    • Time
    • Getting Ready
    • The Most Effective Way to Find Helpful Cases
    • Think Defensively
    • How to Read a Case
    • Find Recent Cases From Certain Courts
    • How Much Is Enough?
    • Research Methodology
  • Preparing Your “Working Outline”
    • Find the Issues
    • Which Issues to Include
    • Building the Outline
    • Framing the Issues
    • An Example—A Civil Case
    • An Example—A Criminal Case

6

Writing the Appellant’s Opening Brief

  • Section A: The Guiding Principles
    • Principle #1: Make It Clear
    • Principle #2: Sculpt the Elephant
    • Principle #3: Aggressive Reasonableness
    • Principle #4: Milk the Record
    • Principle #5: Everything Matters
  • Section B: The Outline of Argument
  • Section C: The Introduction
  • Section D: The “Statement of Issues”
  • Section E: The Statement of Procedural Facts
    • Which Facts to Include
    • Which Facts Not to Include
    • Ditch the Dates
    • How to Persuade in Your Statement of Procedural Facts
  • Section F: The Statement of Substantive Facts
    • Which Facts to Include?
    • The Importance of the Statement of Facts
    • Tell a Good Story
    • The Story Must Be in the Record
    • Which Part of the Record?
    • Citing the Record
    • Don’t Stretch the Record
    • Comply With the Standard of Review
    • State the Standard of Review You Are Following
    • Make It Clear!
    • Explain the Basics
    • Quote Important Language
    • Keep It Concise
    • Divide Your Statement of Facts Into Sections
    • Satisfy the Curious
    • Name the Names
    • Insert Visuals
    • Integrate the Statement of Facts With the Argument
    • How to Persuade in Your Statement of Facts
    • “No Evidence” Is a Fact!
    • Tell the Story Your Way
    • End With a Punch!
    • An Ethical Perspective
  • Section G: The Summary of Argument
    • The Purpose of the Summary of Argument
    • What to Say
  • Section H: The Argument
    • When to Write the Argument
    • Getting Started
    • Headings
    • The Structure of Each Section
    • The “Harmless Error” Problem
      • Use Your Statement of Facts to Show a “Close Case”
      • Consider the Other Evidence
      • Use the Opening Statement and Closing Argument
    • Develop a Theme
    • Make the Court Want to Decide Your Way
    • The Appellant Must Answer the Trial Court
    • Use Alternative Arguments
    • Use the Facts
    • Create Examples
    • Explain How a Proposed Rule Will Affect Society
    • Pitching to Particular Justices
    • Anticipate Opposing Arguments?
    • How Much Law Should You Explain?
    • Using Statutes
    • Using Cases
    • Never Cite a Case Without a Purpose, and Make That Purpose Clear in the Text Surrounding the Citation
    • Use Proper Form of Citations
    • Include Point Cites
    • Use Quotations—But Sparingly
    • Avoid “String Cites”—Usually
    • Use Cases and Treatises to Explain Why the Rule Is Just
    • Secondary Sources
    • Be Reliable
    • Be Moderate and Reasonable
    • Think Creatively
    • “Formalist” or “Realist”?
    • Make the Judge’s Job Easy
    • Little Things
    • Be Concise
    • How Brief Should Your Brief Be?
    • Keep Your Language Simple
    • Go Easy on the Adjectives and Adverbs
    • The “Attack” Adjective
    • Use Moderate Language
    • Go Easy on Opposing Counsel
    • Go Especially Easy on the Trial Court
    • Emphasize, But Don’t Yell at the Court
    • Read It as You Write It
    • Writing Style
    • Keep It Clear
    • Can You Learn From “Great” Writers?
    • Write a Dream
    • Guide the Judge as You Go Along
    • Complete All Thoughts
    • Write for Two Audiences
    • Should You Include Footnotes?
    • Very Petty Peeves
  • Section I: The Conclusion
  • Section J: Editing and Feedback
    • Editing
    • Your Frame of Mind
    • What to Watch For
    • Edit Every Day
    • Get Feedback

7

The Respondent’s Brief

  • Getting a Head Start
  • The Standard of Review
  • The Introduction
  • The Statement of Facts
  • The Outline of Argument
  • The Argument
  • The Conclusion

8

The Appellant’s Reply Brief

  • The Most Important Brief?
  • Don’t Just Repeat
  • What to Write
  • Concessions?
  • “How Could I Lose This Appeal?”
  • Laying Traps

9

Oral Argument

  • Section A: Your Goals
    • Why Argue?
    • The Context
    • How to Win at Oral Argument
    • Pitch the Justice of Your Cause
    • Answer the Judges’ Concerns
  • Section B: How to Prepare
    • Prepare for Questions
      • Questions About the Record
      • Questions About Cases
      • Questions About Statutes
      • Anticipate the Questions
    • Prepare a Very Short Summary of the Facts
    • Prepare an Outline
    • Do Not Prepare a Speech!
    • Prepare Policy Arguments
    • Examples and Analogies
    • Prepare a Conclusion
    • Preparing the Respondent’s Outline
    • Hold a Moot Court
    • Don’t Do a Moot Court the Way They Do It in Law School
    • When to Hold the Moot Court
    • Scout the Court
    • Get Some Sleep
    • Should You Invite Your Client?
    • Share Oral Argument Time?
    • What to Bring
  • Section C: What to Do at Oral Argument
    • The Appellant’s Opening Argument
      • Your Opening Lines
      • The Golden Rule: Stay in the Moment
      • Answering Questions
      • Listen Very Carefully
      • Conflicts Among the Judges
      • Whack the Softballs
      • Keep Case Discussion to a Minimum
      • Tone
      • Beware the Straw Man
      • Use Your Strong Points
  • Section D: Respondent’s Argument
  • Section E: Appellant’s Rebuttal
  • Section F: Style, Anxiety, and Miscellaneous Tips
    • Style
    • Watch Your Words
    • Anxiety
    • Miscellaneous Tips
    • When to Stop
    • “Zealous” Oral Argument

10

You Lost. Now What?

  • File a Petition for Rehearing?
  • Seek Review by the California Supreme Court?
  • The Problem
  • Show “A Conflict”
  • Show an “Important Issue of Law”
  • Amicus Letters
  • More Tips
  • Opposing a Petition for Review

11

Writ Review of a Non-Appealable Trial Court Order

  • The Problem
  • Show Immediacy—The Issue Must Be Resolved Now
  • Show a Need to Clarify the Law
  • Show Serious Injustice by the Lower Court
  • Drafting the Petition

12

On Losing

13

Billing for Thinking

14

Sample Briefs

  • Sample #1: White v. Square, Inc.
    (An Appellant’s Opening Brief in a State Civil Appeal)
  • Sample #2: White v. Square, Inc.
    (A Respondent’s Brief in a State Civil Appeal)
  • Sample #3: White v. Square, Inc.
    (An Appellant’s Reply Brief in a State Civil Appeal)
  • Sample #4: White v. Square, Inc.
    (An Amicus Curiae Brief in a State Civil Appeal)
  • Sample #5: White v. Square, Inc.
    (An Answer to an Amicus Curiae Brief in a State Civil Appeal)
  • Sample #6: Betz v. Trainer Wortham
    (An Appellant’s Opening Brief in a Federal Civil Appeal)
  • Sample #7: Doe v. GlobalLogic, Inc.
    (A Respondent’s Brief in a State Appeal)
  • Sample #8: Davis v. Harris Construction Co.
    (A Petition for Review to the California Supreme Court)
  • Sample #9: Law Office of Leslie F. Jensen v. Masellis
    (An “Amicus Letter” in Support of a Petition for Review by the
    California Supreme Court)
  • Sample #10: Dr. T. v. Superior Court
    (A Petition for Writ of Mandate, Prohibition, or Other Appropriate Relief)
Myron Moskovitz directs the Moskovitz Appellate Team, a group of former
appellate justices and appellate law clerks who handle and consult on civil appeals
and writs, in both state and federal courts.
Myron graduated from the University of California, Berkeley, School of
Law as a member of Law Review and Order of the Coif. He then served
as a law clerk to Justice Raymond E. Peters of the California Supreme Court.
He practiced law for several years, and then became Professor of Law at Golden
Gate University, where he taught Constitutional Law and Advanced Appellate
Practice.
During this time, he has handled and consulted on hundreds of appeals
in state and federal courts, including the California and United States Supreme
Courts. When representing appellants, he has obtained reversals in over 60
percent of his cases (while the average reversal rate is below 20 percent).
He has taught several thousand lawyers how to write winning briefs and
argue their appeals effectively.
He is a Member of the California Bar, and is also admitted to practice
before the United States Supreme Court, the United States Courts of Appeal
for the Second and Ninth Circuits, and the United States District Courts for the Northern,
Eastern, and Central Districts of California. He has handled cases in all of
these courts.
He lives in Piedmont, California, with his wife Diana and son Ari.
Products specifications
PRACTICE AREA Civil Litigation & Torts
PRODUCT GROUP Publication
Products specifications
PRACTICE AREA Civil Litigation & Torts
PRODUCT GROUP Publication