Level 2 Research & Writing For the Opening Brief

Transcription

1 Level 2 Research & Writing For the Opening Brief Time to set aside: The amount of time each person will need to complete this section will vary. However, setting aside 8 hours per week over the next three weeks would not be unreasonable for this level. Write: Standard of Review and Preservation Sections 1. Section Overview: Now that you have a general idea of the law surrounding your Issues on Appeal, you need to learn what it takes to win the appeal. To win, you must meet or exceed the Standard of Review. You also must have properly preserved that question for review on appeal. More information on the Standard of Review and preservation is in the research section of this guide. 2. Section Contents: Create an Arguments section after the Issues on Appeal section you have already drafted. Copy each issue into the Arguments section. For each issue, create three subsections: a. Standard of Review You will need to mention what Standard of Review the Court of Appeals should use to evaluate each possible mistake. Cite to the case, rule or statute that directs this standard. b. Preservation on Appeal The trial court gets the first opportunity to decide the issues in the case. In this sub-section you will mention where on the record you brought this issue up to the trial court. After the record is certified, you will include a citation to the 1

2 Record on Appeal as to where on the record that happened. c. Discussion You will begin drafting this section in Level 3. d. Repeat these three sub-sections for each issue you have. 3. Formatting: Please adhere to the formatting guidelines in Colorado Appellate Rule (C.A.R.) 32, including using a 14- point font size, double line spacing, Bookman, Garamond, or Times New Roman font, and printing on only one side of the page. Research: Standard of Review and Preservation 4. Standard of Review: In an appeal, the Court uses different standards (markers/gauges/guides) to determine if an action by the trial court is a mistake they should fix. You must meet or exceed that standard to win the appeal. But first, you will need to argue which standard the Court should use to evaluate the issue. Here are the main Standards of Review: a. De Novo: This means the issue is one of law, not fact, which the Court of Appeals will decide without giving any deference to the trial court s decision. i. When Used: Issues of law. ii. How to Win: Imagine an old scale. With this standard, the scale is set so that each side is equal 50/50. That is, the Judge s opinion of the law and your opinion of the law are equal. To win on 2

3 appeal, you will need to argue what the correct law is, and that the trial court did not use or follow the correct law. The scale needs to tip in your favor by just a little bit for you to win. iii. Why This Standard: An appellate court wants to make sure that the law is being interpreted correctly. So, they don t hesitate to step in and correct an error of law. iv. Checks & Balances: With these issues, the appellate court is a check on the trial courts power in interpreting the law. v. How to find a citation: Ideally, you will find a case with a similar issue and with similar facts. In that opinion, the Court will usually say which level of review it used. This would be the most persuasive case to cite to argue for a Standard of Review. Review the cases you found on this area of law and find out what standard of review they used. Or try a general search of your issue and standard of review in a legal research program. b. Clearly Erroneous: This means that the appellate court will agree with the trial court s decision on a factual question, unless the trial court s decision was not supported by the evidence. i. When used: Issues over the trial court s fact findings. ii. How to Win: Imagine our scale again, with the Judge s opinion of the facts on one side, and yours on the other. But this time, instead of being 50-50, the scale is tipped so that the Judge s opinion starts out 3

4 with an advantage at 75 and yours is set at 25. To win an appeal for this standard, you must show that the trial court s finding was clearly wrong. You do this by showing that the District Court could not support the finding with any of the facts presented on the record. Or that an assumption of a fact was unreasonable given all the facts presented. iii. Why This Standard: We want our justice system to be efficient, while still getting the answer right. People have disagreements, and at some point, someone just has to make a call as to who is telling the truth. No one is perfect at being a lie detector. But it helps to be there when the person is telling their side of the story, and has the most background on the case. That is why the job rests solely with the trial court. A trial judge is in the courtroom observing witnesses, looking at the documents, and interacting with the parties. So, they are in the best position to determine who is telling the truth. This means the benefit of the doubt is given to the trial court in determining the facts of the case. iv. Checks & Balances: With the Clearly Erroneous Standard of Review, there is a check on the trial court s power to not make up facts, or make unsupported assumptions based on the facts. 4

5 There is also a check on an appellate court s power not to substitute its judgment for that of the trial court. v. How to Find a Citation: The Colorado Rules of Civil Procedure (C.R.C.P.) Rule 52 directs that an appellate court may not set aside a finding of fact in a civil case unless they are clearly erroneous. You may need to look at case law to further argue that this issue is one of fact. c. Abuse of Discretion: The law often gives the trial court the freedom to decide what is best. The Abuse of Discretion standard is used when the trial court had more than one appropriate way to decide an issue. i. When used: When the Judge had more than one appropriate way to resolve the issue. This often happens when the law requires the judge to factor in different facts to reach a decision. Some examples include: Whether to accept evidence, whether to grant more time, how to divide up property in a divorce, or the allocation of parenting time. See below for more examples. ii. How to Win: To win an appeal for this issue, you must show that the decision of the trial court was not one of the appropriate ways it could have decided the case. Back to our scale, but this time the Judge s decision is given an advantage of 90 and your opinion of what the decision should have been is at 10. 5

6 You must show that the decision was manifestly arbitrary, unreasonable or unfair 1. This means, you will have to argue that the Judge s decision wasn t among the possible reasonable decisions that could have been made. You might do this by arguing that the judge: 1. Used a factor to reach her decision that she shouldn t have, 2. Didn t use a factor that she should have. 3. Used a fact that was clearly wrong, or 4. Failed to correctly apply the facts to the law. iii. Why This Standard: We want our justice system to be efficient, while getting a reasonable resolution. But what is a good answer for you, may not be a good answer for the other party. A judge must make weight a variety of things before making a decision. It s hard to do and there are never clear cut answers. But at some point, someone just has to make a final decision. This decision power rests with the trial court. iv. Checks & Balances: With the Abuse of Discretion Standard of Review, there is a check on the trial court s power to not make decisions that are outside of the available options given the facts and the law. There is also a strong check on an appellate court s power not to substitute its judgment of the best decision for that of the trial court. An appellate court is looking to see if the decision made was an available reasonable option, not if it was the best decision that could have been made. 1 See, e.g. People v. Rath, 44 P.3d 1033, 1043 (Colo. 2002); Premier Farm Credit v. W. Cattle, 155 P.3d 504, 512 (Colo. App. 2006). 6

7 v. How to Find a Citation: This standard of review is mostly directed by case law. Research may be needed for your specific issue. The following are some examples of issues which would take an abuse of discretion review. 1. Evidence - The Colorado Rules of Evidence Rule 103(a), 403, and interpreting case law of People v. Abbott, 638 P.2d 781 (Colo. 1981); People v. Rath, 44 P.3d 1033, 1043 (Colo. 2002); People v. Hall, 107 P. 3d 1033, 1043 (Colo. 2002) direct an abuse of discretion standard in evidence. 2. Pretrial and Discovery Decisions Green v. Quest, 155 P.3d 383, 387 (Colo. App. 2006); People ex rel. S.G., 91 P.3d 443, 450 (Colo. App. 2004). 3. Procedure The day to day progress decisions of a case. Cherry Creek Schools v. Voelker, 859 P.2d 805, 810 (Colo. 1993). 4. Sanctions Whether to impose sanctions and what the sanctions are. The more serious sanctions for the more serious misconduct. People v. Daley, 97 P.3d 295, 298 (Colo. App. 2004). 5. Approval of Settlements - Highley v. Kidder, 920 P.2d 8884, 891 (Colo. App. 1996). 6. Rulings on Costs & Attorney s Fees see e.g. Kennedy v. King Soopers, 148 P.3d 385, 389 (Colo. App. 2006). 7. Preliminary Injunctions See e.g., Sanger v. Dennis, 148 P.3d 404, 410 (Colo. App. 2006); Bloom v. National Collegiate, 93 P.3d 7

8 621, 623 (Colo. App. 2004); Rathke v. MacFarlane, 648 P.2d 648, 653 (Colo. 1982); Evans V. Romer, 854 P.2d 1270, 1274 (Colo. 1993). 8. Division of Marital Property See, e.g., In re Balanson, 25 P.3d 28, 35 (Colo. 2001). 9. Parental Responsibilities In re B.R.D., 280 P.3d 78 (Colo. App. 2012). 10. Child Support In re Marriage of Wells, 252 P.3d 1212 (Colo. App. 2011). 11. C.R.C.P. 60 Motions Goodman Assocs., LLC v. Winter Quarters, LLC, 292 P.3d 1060 (Colo. App. 2012); In re Marriage of Anderson, 252 P.3d 490, 493 (Colo. App. 2010). 12. Recusal of Judge Watson v. Cal-Three, LLC, 254 P.3d 1189 (Colo. App. 2011). d. Mixed Questions of Law & Fact: Sometimes there is not a clear line if the issue is one of law or of fact. It will be up to you to make your arguments for the standard you believe should be used. 5. Preservation: The Court system wants to be as efficient as possible. To do that, people need to first resolve all their issues at the District Court. Then, if the issue was brought up and ruled on in District Court, the issue will be considered by the Court of Appeals. Here is a storybook example: Hansel and Gretel get sick from eating the walls of the old Lady Sweetum's gingerbread house. Hansel gets food poisoning and sues the lady. A trial occurs and the Judge rules in favor of Hansel. On appeal the lady brings up a new 8

9 legal theory. Her idea is that Hansel assumed the risk of getting sick. He should know that eating walls will make you sick, and assumed the risk when he started eating her walls anyway. Therefore, the lady shouldn't be responsible for his medical bills. However, because the lady didn't bring this legal argument (affirmative defense) up until the appeal, the Court of Appeals would not consider that argument, regardless if it is true or accurate. Again, the courts want to be efficient. There wouldn t be much point of having that trial in the first place, if new evidence or new ideas could be brought at the appellate level. Also, it wouldn t be fair to Hansel. He can't counter this new legal theory with evidence, testimony, or any of the other tools that are available at a trial. Because he doesn't have the full opportunity to challenge this new idea, it's unfair to him to do it now on appeal. a. Plain Error: An exception to preservation is if the issue is what is known as plain error. The idea of plain error is that the issue was so obvious and important it doesn t need to be preserved. This isn t used in civil cases very often, but allows an appellate court to review issues that affect important rights, even though they weren t preserved in the trial court. b. Research: Obvious examples of preservation of an issue occurs when a Motion is filed, an objection is said on the record in court, or a theory of law was argued in the hearing and ruled on in the final orders. However, you may need to do more research to determine what exactly constitutes preservation for your issue. 6. Additional Help: A practice series, such as Colorado Appellate Law and Practice, 2 nd ed., Anne Gill (Thompson- 9

10 West 2007), may give further examples and clarification for Standard of Review and Preservation. Opening Brief Levels: Level 1: Issues on Appeal & General Law Level 2: Standard of Review & Preservation on Appeal Level 3: Discussion Section Level 4: Statement of the Case & Record Review Level 5: Argument Summary, Table of Contents & Sources, Certificate of Compliance, & Conclusion. Sections of the Opening Brief: 1. Certificate of Compliance 2. Table of Contents & Sources 3. Issues on Appeal 4. Statement of the Case 5. Argument Summary 6. Argument a. Standard of Review b. Preservation on Appeal c. Discussion 7. Conclusion 10