1.0 Law & Legal CLE Credit A/V Approval # Recording Date February 12, 2018 Recording Availability April 17, 2018

Transcription

1 1.0 Law & Legal CLE Credit A/V Approval # Recording Date February 12, 2018 Recording Availability April 17, 2018 Meeting Location Date Time Topic King County Bar Association 1200 Fifth Avenue - Suite 700 Seattle, WA Monday, February 12, :00 PM to 1:15 PM Appellate Brief Writing Advice and Thoughts from the Bench and Bar AGENDA 12:00 PM Introduction 12:10 PM Presentation: Appellate Brief Writing Advice and Thoughts from the Bench and Bar, by Judge Stephen J. Dwyer, Washington State Court of Appeals, Division One; Ken Masters, Masters Law Group and Shelby Frost Lemmel, Masters Law Group---- Advice on how to keep the big picture and your goals in mind when drafting an appellate brief. A discussion of how best to use the various sections of an appellate brief to make your case. Insights and suggestions for resources to improve your brief writing. 1:15 PM Adjourn SPEAKER BIOGRAPHY Judge Stephen J. Dwyer, Washington State Court of Appeals, Division One Judge Stephen Dwyer was elected to the Washington State Court of Appeals, Division One, in November 2005, following 11 years of serving on the Snohomish County District and Superior Courts. In , Judge Dwyer served as the Presiding Chief Judge of the Court of Appeals (all three divisions), having previously served as the Chief Judge of Division One ( ) and as Division One s Acting Chief Judge ( ). Judge Dwyer is active in judicial and bar association educational endeavors. He is a long-time member of the Annual Judicial Conference Planning and Education Committee. He has co-authored three published law review articles, numerous judicial and legal education materials, and is a frequent presenter at judicial and bar educational conferences.

2 In 2003, Judge Dwyer was honored with the Washington State Bar Association's Outstanding Judge award. In 2001, he received a state Judge of the Year award from the Washington State Trial Lawyers Association. Ken Masters, Masters Law Group Ken Masters (Founder of Masters Law Group, PLLC) celebrated 25 years litigating appeals in Ken has litigated hundreds of state and federal civil appeals in all areas of the law. Ken is a Trustee of the Washington State Bar Foundation, and chairs the WSBA s Escalating Costs of Civil Litigation Rules Drafting Taskforce. He previously served as WSBA Treasurer and Governor, and chaired its Rules and Amicus Committees. He also chaired KCBA s Judicial Screening Committee and Appellate Law Section. A presenter or chair for dozens of appellate seminars, Ken is also a contributing editor for the Washington Appellate Practice Deskbook. He authored a substantial rewrite of the Brief Writing chapter in Ken was President of the Washington Appellate Lawyers Association from 2007 to He is a Fellow of the American Bar Foundation and of the American Academy of Appellate Lawyers. Shelby Frost Lemmel, Masters Law Group Since joining the predecessor of Masters Law Group (Wiggins & Masters) in January 2003, Shelby s practice has focused on civil appeals in all areas of the law, ranging from constitutional law to contracts, family law, personal injury, real property and others. Shelby handles appeals in Washington s three appellate courts, the Ninth Circuit, and the United States Supreme Court. Shelby also works with attorneys in litigation, assisting with potential appellate issues and proceedings following a remand. Shelby obtained her BA in English from the University of Washington, and obtained her J.D. from the Seattle University school of law, where she graduated magna cum laude. She worked as a judicial extern for the Honorable Barbara J. Rothstein, Western District of Washington, and Justice Charles W. Johnson of the Washington State Supreme Court.

3 HOW DO I EARN CREDIT FOR SELF-STUDY OR AUDIO/VISUAL (A/V) COURSES? For pre-recorded A/V (self-study) programs, although the sponsor should apply for accreditation, lawyers need to report the credits earned for taking the course. To add an approved course to your roster, follow the procedures below: Go to the "mywsba" website at Log in. Click on the "Access MCLE" link in the "MCLE Info" box on your home profile page. Click on "Add Activity." Search to find the approved course in our system. (See search suggestions on the screen.) Adding a Recorded Course Select Recorded Course from the Add New Activity screen. This will prompt you to search for the activity in case the activity has already been accredited in the MCLE system. You can search by Activity ID or by specific Activity Details. For the Activity Details search, you can use keywords for the title, sponsor name and date. After entering your search criteria and selecting Search at the bottom of the screen, a list of possible activities will be provided. You can select the correct one by clicking the Activity ID. This will take you to the specific activity. Entered the date(s) on which you began and ending viewing this recorded activity. Then claim the correct credits for which you attended this activity in the Credits Claimed fields and click the Submit button at the bottom of the page. You will receive a confirmation message at the top of your screen stating, The activity has been added to your roster.

4 Appellate Brief Writing Advice and Thoughts from the Bench and Bar

5 Panelists Judge Stephen J. Dwyer, Washington State Court of Appeals, Division One Ken Masters, Masters Law Group Shelby Frost Lemmel, Masters Law Group

6 Overview Big picture/preliminary thoughts Advice for each brief section Miscellaneous advice and resources for improving brief writing

7 Big Picture Tell a Story Every lawsuit is a story. I don t care if it s about a dry contract interpretation; you ve got two people who want to accomplish something, and they re coming together that s a story. And you ve got to tell a good story.... you want it to be a little bit of a page-turner, to have some sense of drama, some building up to the legal arguments. Bryan A. Garner, Interview with Supreme Court Justice John Roberts, available at

8 Briefs Sections Brief sections for opening brief (RAP 10.3(a)): Title Page Tables Introduction Assignments of Error, together with related issues. Statement of the Case Argument Argument may be preceded by a summary. Conclusion Appendix Response brief should include above, except for assignments of error unless also seeking review Reply brief should contain argument responding to response brief

9 Introduction Container for case Parties/facts that gave rise to the suit What happened below What the error/correct decision was that is at issue on appeal. Set the theme. Don t need citations under RAP 10(a)(3)

10 Assignments of Error RAP 10.3(a) requires [a] separate concise statement of each error a party contends was made by the trial court RAP 10.3(g) also requires separate assignments of error for each challenged instruction or finding of fact with references to the instruction/finding by number

11 Statement of Issues Give factual information necessary to understand the issue Issue should suggest the answer but not obviously demand it Not rote Did the trial court err in granting summary judgment despite the existence of genuine issues of material fact? RAP form 6 has good examples List related assignments of error after issues

12 Statement of the Case Start with your client Generally chronological Informative Headings That includes procedural history Record cite for each factual assertion No argument Respondent s brief Point out if appellant has presented a statement of the case that either ignores the standard of review or conflicts with unchallenged findings that are now verities

13 Standard of review Critical to every appeal RAP 10.3(a)(6) The court ordinarily encourages a concise statement of the standard of review as to each issue As appellant, don t ignore the standard of review because it is unfavorable Frame issues to obtain the least deferential standard of review As respondent, make issues factual to extent possible, use standard of review to your advantage

14 Argument Strongest argument first Argue every assignment of error if appellant Argumentative headings that match issues Record cite for each factual assertion If a major statute/rule is at issue quote it upfront When citing a case, provide factual information necessary to make case persuasive

15 Conclusion RAP 10.3(a)(7) requires a short conclusion stating the precise relief sought Division One Best Practices Both sides should tell us what they think ought to happen next if we decide to reverse on one or more issues. Will a remand be necessary? Will further fact-finding be necessary? Will the trial court need specific instructions?

16 Appendix Appropriate materials to include as appendix: Important statute(s) Challenged orders/instruction Findings/conclusions Key exhibit Maps If not statute, rule, regulation, must be part of the record. RAP 10.3(a)(8); RAP 10.4(c).

17 Miscellaneous Advice Refer to parties by name Don t hide from tough facts/cases Eliminate passive voice Shorter is better Avoid string cites Citecheck/proofread Reflect on what you could have done better after case is over

18 Bibliography Washington Appellate Practice Deskbook (4th ed 2016) Winning on Appeal: Better Briefs & Oral Argument, Ruggero Aldisert Briefly Speaking, Washington State Court of Appeals, Division I Patricia M. Wald, "19 Tips from 19 Years on the Appellate Bench," The Journal of Appellate Practice and Process Vol. 1, No. 1 (Winter 1999)

19 Questions?