The Bankruptcy Appellate Panel of the Ninth Circuit has adopted some materials designed to assist attorneys and litigants involved in a bankruptcy appeal before the BAP. Although many of the excellent materials address the peculiarities of bankruptcy appeals, Appendix I has advice for all attorneys in any court.
Do’s and Don’ts for an Effective Appeal
1. Know what relief you want (and why).
2. Know your audience. BAP judges generally possess a level of expertise in bankruptcy matters superior to that of most district court judges and their law clerks.
3. Understand the role of the appellate court. While its dominant role is to assess whether the trial court reached the correct result, the appellate court is also concerned with the overall impact of its ruling on the general body of bankruptcy law.
4. Clarify the standard of review and frame arguments around that standard.
5. Simplify the story. Write with punch – short, crisp, essential facts.
6. Organize your brief with short headings, rather than long sentence headings.
7. Paraphrase quotes whenever possible. Long block quotes are soporific.
8. Focus your appellant’s argument on areas where the judge’s ruling is most susceptible to being reversed.
9. Provide an adequate record, and know what is in it. Follow the rules with respect to organizing, paginating and tabbing the record (appendix), so that the judges and law clerks can find pertinent excerpts quickly.
10. Use a conversational tone rather than a formally structured oral argument. This helps facilitate the transitions that are inevitable when interrupted with questions from the Panel. Feel free to take less than your allotted time. Expect the most questions to be asked of the party with the weakest position, and expect numerous questions about facts and procedure.
11. Be honest and direct in answering the Panel members’ questions. Acknowledge the weaknesses of your case. Usepolicy arguments sparingly, if at all.
12. Listen to the questions being asked of your opponent and be ready to fill in the blanks on matters of concern to the Panel.
1. Use many words when a few will do.
2. Make convoluted arguments.
3. Make grammatical or typographical errors.
4. Write in a disorganized and unintelligible manner.
5. Attack the trial judge or opposing counsel.
6. Use block quotes extensively.
7. Plagiarize/fail to attribute quoted sources
8. Overuse policy arguments or § 105.
9. Avoid direct answers to the judges’ questions.
10. Deflect the question and distract the judge if it is not the question you wanted to hear.
11. Cut off the judge’s question in mid-sentence.
12. Be ignorant of the record or mischaracterize the record.
13. Blame your unfamiliarity with the record on the fact that you did not handle the case at the trial level. (The “SODDI” excuse – “some other dude did it”).
Appeals Before the Bankruptcy Appellate Panel of the Ninth Circuit 48-50 (April 2014 .)
You may think these points are too obvious to mention, but they show up on a list like this because the judges saw appeal after appeal in which guidance on these points was not known or not followed.