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Moskovitz on Appeal: Advanced Insights From An Appellate Advocate Who Wins

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Most lawyers see the appellate court as foreign territory, an arena for quiet, scholarly debate far different from the rough–and–tumble, think–on–your–feet type of practice common in the trial courts. Because of this perception (largely correct), lawyers are often uncomfortable writing briefs and arguing before appellate courts, and frequently their primary concern is simply to get through the ordeal without looking foolish. They look at other briefs or court rules to see that their briefs are in the “proper form, “ and then just do their best to present a respectable argument.

This book is intended for the lawyer who wants to get beyond looking OK. It’s meant for the lawyer who wants victory for the client. This book is not about the form of an appeal; it is about the substance of an appeal. This book is about how to win.

The key is to examine the thinking process of appellate justices. That’s where the action is. Figure out how The Deciders decide cases. Try to select appeals in cases that the Deciders might like. Then structure your presentation to fit how the Deciders decide.

That’s the way to win, and that’s what this book is about.

Testimonials

"This book is extraordinary. Every lawyer filing an appeal, whether their first or their 100th, will want to consult Professor Moskovitz's book. It offers practical advice from a renowned scholar who is also one of our most experienced and respected appellate practitioners."  -- Justice James Lambden, California Court of Appeal (Retired)

"The usual ‘how to’ book on appellate practice amounts to little more than a guide to compliance the Rules of Court. In this book you will find useful insights into what influences how appellate courts decide cases, which will make you a more effective advocate." -- Justice William D Stein, California Court of Appeal (Retired)

"Myron distills his forty-plus years of in-the-trenches appellate experience into straightforward tips and pointers about what actually persuades appellate judges in the real world. A must-read for any appellate specialist or lawyer who takes appeals as seriously as they should be taken." --  Ben Feuer, California Appellate Law Group (former law clerk for U.S. Court of Appeals, 9th Circuit, Judge Carlos Bea)

"Myron Moskovitz’s book is rich in useful ideas both for the beginner and the veteran in the practice of law. Moskovitz also teaches by example, showing how even dry procedural points can be made lively and entertaining by good writing." -- Robert Gerstein, Los Angeles (former President of California Academy of Appellate Lawyers)

"Read it. Believe it. Follow it. Win." -- Jay-Allen Eisen, Sacramento (Fellow of the American Academy of Appellate Lawyers)

"Professor Moskovitz’s book and its time-learned lessons should empower appellate neophytes as well as aid experienced practitioners, with both general perspectives and specific pointers. As another notable Bay Area figure often said, ‘Just win, baby.’ " --  Don Willenburg, Gordon & Rees (past Chair, Appellate Section of Bar Association of San Francisco)

"Moskovitz explains with candor how the appellate process works from the inside and what every participant (party or counsel) needs to understand. A refreshing focus on the practicalities of an appeal, not just the formalities." -- Joshua R. Benson, Chair of Appellate Practice, Taylor & Company Law Offices, LLP (former law clerk to U.S. Court of Appeals, 9th Circuit, Judge A. Wallace Tashima)

“This compelling guide addresses the heart of the matter—connecting the client’s cause to the court’s sense of justice. Every lawyer who wants to persuade a judge needs this book.” -- Daniel U. Smith, San Francisco, certified appellate specialist (former law clerk to U.S. District Court, Northern District, California, Judge Alfonso Zirpoli)

“Myron has an uncanny ability to find and focus on the key issue in a case, tune out the noise, and lead the court to where he wants them to go. The principles he sets out in this practice manual are a good start for any lawyer who wants to develop those same skills.” -- Bill Hancock, California Appellate Law Group (former research attorney for California Court of Appeal Justice J. Anthony Kline)

Authors / Contributors

Table of Contents

Introduction



PART I: HOW TO WIN

Chapter 1 The Key

Chapter 2 “Myron’s Rules“



PART II: SHOULD I APPEAL?

Chapter 3 The Merits—Including the Standard of Review

Chapter 4 The Costs

Chapter 5 The Bottom Line



PART III: PREPARING TO WRITE THE BRIEF

Chapter 6 Reviewing the Record

Chapter 7 Preparing Your “Working Outline“



PART IV: WRITING THE BRIEF

Chapter 8 The Guiding Principles

Chapter 9 The Outline of Argument

Chapter 10 The Introduction

Chapter 11 The Statement of Issues

Chapter 12 The Statement of Facts

Chapter 13 The Summary of Argument

Chapter 14 Legal Research

Chapter 15 The Argument

Chapter 16 The Conclusion

Chapter 17 Editing and Feedback

Chapter 18 Special Considerations When Writing the Respondent’s Brief

Chapter 19 The Appellant’s Reply Brief



PART V: ORAL ARGUMENT

Chapter 20 What’s Your Goal?

Chapter 21 Preparation

Chapter 22 What to do at Oral Argument



PART VI: YOU LOST. NOW WHAT?

Chapter 23 Petition for a Rehearing?

Chapter 24 Seek “Top Court“ Review?



PART VII: OBTAINING WRIT REVIEW OF A NON–APPEALABLE TRIAL COURT ORDER

Chapter 25 How to Obtain the Writ



PART VIII: SAMPLE BRIEFS & PETITIONS

Sample #1: Lewis v. County of Napa (a short Appellant’s Opening Brief in a state civil appeal)

Sample #2: Betz v. Trainer Wortham & Co. (a longer Appellant’s Opening Brief in a federal civil appeal)

Sample #3: Betz v. Trainer Wortham & Co. (an Appellant’s Reply Brief in a federal civil appeal)

Sample #4: Ward v. Goss–Jewett (a Respondent’s Brief in a civil appeal)

Sample #5: People v. McNally (an Appellant’s Opening Brief in a criminal appeal)

Sample #6: Spear v. Ryan (a Petition for Review to a State Supreme Court)

Sample #7: T. v. Superior Court (a Petition for Writ to an appellate court)