The Idaho Appellate Practice Section of the Idaho State Bar held its annual meeting on Thursday, April 9. As part of the meeting, a panel of law clerks from the Idaho Supreme Court and the Idaho Court of Appeals discussed what they have learned regarding the dos and don’ts of appellate practice during their clerkships. Here are some key points related to briefing:
- Keep your writing clean and clear.
- Maintain a professional and respectful tone—do not disparage the trial court or opposing counsel, as it distracts from your argument.
- The Idaho Supreme Court uses the “Nature of the Case” section of the appellant’s and respondent’s opening briefs to help determine whether an appeal should be retained by the Court or assigned to the Court of Appeals.
- An introduction can be helpful to give an outline and overview of the argument.
- Some clerks use the table of contents to familiarize themselves with the case and guide their review.
- The appellant should state the facts in a straightforward manner; the respondent can use the fact section to redirect the Court.
- The facts are important, but cases are won or lost on the law.
- When describing the lower court’s decision, consider quoting from the decision rather than simply characterizing it.
- Include citations to the record in your statement of facts and in your argument.
- If there is no law directly on point, consider citing to the secondary sources that are typically relied on by the Court.
- Always be mindful of the standard of review.
The panel of law clerks included Paul Hendrikson (Justice J. Jones), Maren Adams (Justice Eismann), Brian Church (Judge Gutierrez), and John Spaulding (Judge Lansing). Alison Graham (Judge Gutierrez) moderated.