Tag Archives: standard of review

Brief-Writing Tips From Judge Easterbrook

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Judge Frank H. Easterbrook of the Seventh Circuit Court of Appeals has given interviews on how to decide what to appeal, common mistakes on appeal, avoiding “counter-punching,” and how to style a persuasive brief. He emphasized three points:  1) cull and frame the issues; 2) write for the generalist judge; and 3) use good typography

On choosing issues, Judge Easterbrook encouraged appellants to consider the standard of review and whether winning the issue achieves a reversal. He explained that the Court is more likely to reverse on legal issues because district courts rarely make clearly erroneous factual findings. He also expressed dismay at appellants who raise issues that cannot change the result, where the appellant still loses even if they win the point.

Judge Easterbrook further advocated that respondents frame the issues and not “counter-punch.” Counter-punching,” he explained, is when respondents answer the opening brief’s points A, B, and C by arguing not-A, not-B, and not-C. Judge Easterbrook urged respondents to tell the Court why they should win before they say why the other side should lose.

He also reminded attorneys that judges are generalists and favor writing that is simple and direct. He suggested that attorneys learn their writing style from the New Republic and the Weekly Standard, not law books.

Lastly, Judge Easterbrook emphasized good typography. He explained that word processing programs deviate from professional printing standards, urged attorneys to use these standards, and suggested the Seventh Circuit’s guidelines.

Does anyone have other tips to add? Please leave a reply or reach me at www.attorneyroberthill.com.

 

 

 

South Carolina Lets a $ 450,000 Verdict Stand

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On Wednesday, the South Carolina Supreme Court declined to disturb a Court of Appeals decision that upheld a tort victim’s $ 450,000 jury verdict. Curtis v. Blake, 392 S.C. 494, 709 S.E.2d 79 (Ct.App. 2011), cert. dismissed as improvidently granted, Op. No. 2012-MO-043 (S.C. filed October 24, 2012).

On appeal, I defended the verdict by pointing to the Court’s limited, “any evidence” standard of review for a jury’s factual findings. Under this standard, the verdict was amply supported by evidence of Curtis’s permanent physical injuries, life expectancy, and continual mental anguish, and loss of enjoyment of life. Here is the brief.

Has anyone else be able to use the standard of review effectively? Please let us hear from you. You may reach us through the comment box below or reach me at www.attorneyroberthill.com.

 

 

 

SC Standards of Review – A Flowchart

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Earlier posts here, here, and here described the various standards of review that the South Carolina appellate courts employ. The South Carolina Bar has published a handy flow chart — SC Standards of Appellate Review.

Kudos to the SC Bar for being so helpful.

 

 

 

6 Tips on Facts to Include in the Brief

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The last two posts covered how to gather and outline the facts for an appeal, and the importance of completing the record. This one discusses what facts to include in the brief:

Statement of the Case Requirements – Rule 208(b)(1)(C), SCACR, lists categories of information that must be included within the case’s procedural history. This asks for basic information such as the nature of the case and a description of the order being appealed.

By requiring a statement of the nature of the case and defenses, the writer may summarize the case at the very beginning of the Statement of the Case.

Record citations — Rule 208(b)(4), SCACR, requires citations to the record. Liberal record citations keep the brief writer honest, and show the Court that honesty.

Supporting facts — the brief writer must, of course, include the facts necessary to develop the arguments on the issues raised. In stating the supporting facts, the level of detail may be driven by the standard of review. On appeal from a jury verdict, for example, the respondent may prevail by pointing only to the evidence that reasonably supports the verdict. An appellant may require a fuller recitation of the facts when the appellate court may take its own view of the evidence, as in equity cases.

Quotes — short quotes may speak volumes. In an appeal I am handling, an at-fault driver claims that a verdict is excessive despite testimony that the victim suffers pain continually. He testified that he hurts “still to this day” and has “every day” since the crash.This pithy testimony was worth quoting.

Background facts — An empirical study found that appellate judges prefer briefs that tell the client’s story rather than offer a bare-boned account of events. This preference grows with the judge’s experience as a judge. Chestek, Judging by the Numbers:  An Empirical Study of the Power of Story, 7 JALWD 1 (2010).

Bad Facts and their Explanations — Justices and judges uniformly agree that attorneys should include material facts that are adverse to their case.

Has anyone faced opposing counsel who omitted a crucial fact that hurt his or her client? Please let me hear from you. You can reach me at www.attorneyroberthill.com.

 

Standards of Review on Appeal: Pre-Trial and Trial Rulings

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The posts on standards of review have covered the difference between questions of law and issues of fact, and between actions that are tried at law and in equity. This post explains the standards of review for certain pre-trial and trial rulings. The next one covers factual findings by administrative agencies.

Rule 12(b)(6) Motions to Dismiss

In 2007 and 2009, the United States Supreme Court issued decisions that overruled the 50-year old standard for reviewing a federal Rule 12(b)(6) motion to dismiss for failure to state a claim. A plaintiff in federal court must now plead sufficient facts to show that liability is plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

South Carolina has not addressed whether it will adopt the federal plausibility standard. The test has drawn strong criticism, and state high courts are split on whether to adopt it. See, e.g., Hawkeye Foodservice Distrib. Inc. v. Iowa Educators Corp., No. 08-2056 (Iowa Feb. 24, 2012)(declining to adopt Iqbal and citing decisions in accord); Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422 (Tenn. 2011)(same).

Until South Carolina weighs in, the older and familiar standard should continue to apply. Under it, the appellate courts independently review the complaint to determine if the facts alleged and the inferences reasonably deducible therefrom will entitle the plaintiff to any relief on any theory of the case. If so, the Rule 12(b)(6) motion must be denied. Grimsley v. South Carolina Law Enforcement Division, 396 S.C. 276, 281, 721 S.E.2d 423, 426 (2012).

Motions for Summary Judgment

The appellate courts also independently review the record to determine if summary judgment was proper. If the non-movant carries the burden of proof by the normal preponderance of the evidence, he or she can defeat summary judgment by pointing to a mere scintilla of evidence in his or her favor. Hancock v. Mid-South Management Co., Inc., 381 S.C. 326, 673 S.E.2d 801 (2008).

Trial motions

Much more deference is paid to the trial judges when they rule on discovery and trial motions. Such rulings are generally reviewed only for an abuse of discretion. And an abuse of discretion does not occur unless the trial judge’s ruling is controlled by an error of law or is without evidentiary support. See, e.g., Fairchild v. South Carolina Dep’t of Transp., 398 S.C. 90, 727 S.E.2d 407 (2012)(rulings on discovery); Wilder v. Blue Ribbon Taxicab Corp., 396 S.C. 139, 719 S.E.2d 703 (Ct.App. 2011)(evidentiary rulings); Winters v. Fiddie, 394 S.C. 629, 716 S.E.2d 316 (Ct.App. 2011)(jury instructions).

Has anyone asked the South Carolina trial courts to adopt or reject the federal Iqbal standard?  Please let us hear from you. You can reach me at www.attorneyroberthill.com.