COMMENTARY: Top six appellate tips

By Kimberlee A. Hillock

(1) Attach the entire deposition transcript in summary disposition motions. When an attorney is intimately familiar with a case, the attorney may think that only 1 or 2 pages from the transcript need to be attached to prove the point. However, for the reviewing judge or clerk, a single page or two may not give enough context as to the line of questioning. There are often additional statements supporting the attorney’s position, which cannot be used on appeal unless they were attached at the trial court level. Also, when only 1 or 2 pages are attached, it looks like the attorney is hiding something. This is especially true when opposing counsel cites other portions of the same transcript supporting his or her position. It is better to attach the entire thing, even the unfavorable parts (see tip 3).

(2) Proper citation to documents in summary disposition motions. MCR 7.212(C)(6) requires that a statement of facts in an appellate brief contain “specific page references to the transcript, the pleadings, or other document or paper filed with the trial court.”  This is so that the reviewing appellate attorney at the court can find the document in the trial court record and verify that the issue is preserved and the document was before the trial court. When the document is properly cited in the summary disposition motion, it is easy to update this citation in the appellate brief. Also, I think it helps to cite to the trial court record in the same manner as the reviewing appellate attorney does in his or her prehearing reports/bench memos/commissioner reports (anything to make it easier for review is my motto).  I have inherited appeals from other law firms with citations to the record that I cannot decipher and therefore have to create from scratch, which takes time; you don’t want to do that to your reviewing attorney because the reviewing attorney may not take the time. So, for example, “Deposition of John Smith, 12/1/16, pp 23, 27, attached as Exhibit A to Joe Client’s summary disposition motion, 12/15/16, attached hereto as Exhibit A.” The bold portion would be the citation in the summary disposition motion, the rest of the citation would be added on appeal.

(3) Not ignoring the unfavorable facts but addressing them head on. Opposing counsel is most certainly going to bring up the unfavorable facts. In my opinion, it is best to come up with an argument addressing these facts as early as possible in the case.  Ignoring the facts will only make it look like counsel is being less than candid with the court, and counsel will have a field day with this. Presenting unfavorable facts on appeal is mandatory. MCR 7.212(C)(6) also requires that the statement of facts be “clear, concise, and chronological,” and “All material facts, both favorable and unfavorable, must be fairly stated without argument or bias.” It is not a good practice to ignore the unfavorable facts.  The court rule requires that they be included. The reviewing attorney goes through the entire record and will certainly uncover them. Opposing counsel will most certainly highlight them and accuse your client of lying to the court. The Court of Appeals and Supreme Court will not look favorably on an argument that ignores them.  It is much better to be the one to present the unfavorable facts for three reasons.  First, it makes you look more credible. Secondly, it takes the wind out of opposing counsel’s sails. And finally, it allows you to present the unfavorable facts in as a positive light as possible.

(4) Reply briefs are for rebuttal argument only. This is your chance to tell the court why the other side’s argument/authority is incorrect or inapposite. In the 2013 Appellate Bench Bar Conference, the Supreme Court stated that reply briefs focusing on rebuttal were the most helpful. Filing a reply brief that merely reiterates your original position in the appellant brief is a waste of your time and your client’s money, and will merely irritate the reviewing attorneys and judges.

(5)   E-file. There are several advantages to this. First, one doesn’t need to produce multiple paper copies of the brief. Secondly, it is easier to serve everyone. Third, it eliminates nth-hour mad dashes to the courthouse to hand file. Fourth, if done correctly with text recognition and bookmarking, the brief and exhibits are user-friendly. Fifth, more than half the Court of Appeals judges and Supreme Court justices prefer to review briefs on their electronic devices rather than paper copies, and I predict this number will become higher as judges retire and are replaced with the younger crowd. And sixth, it is easier for the three-judge panel to circulate and read.

(6) Include ALL relevant exhibits. There is only one “paper” copy of the record. If you want all judges to consider the relevant portions of the record, attach them to your briefs as exhibits.
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Kimberlee A. Hillock is a shareholder and a co-chairperson of Willingham & Coté PC’s Appellate Practice Group. She previously worked as a research attorney and judicial clerk for Michigan Court of Appeals Judge Donald S. Owens and as a judicial clerk for Michigan Supreme Court Chief Justice Clifford W. Taylor. She can be reached at khillock@willinghamcote.com.