Helping Trial Lawyers Navigate the Appellate System

Appellate Practice and Procedure Lesson 7: Rehearing and Higher Court Review

IMG_0089This post features the video and slides for the seventh lecture in my Appellate Practice and Procedure course, which I introduced here. The presentation appears after the jump.

How do you convince an appellate court to change its mind when it’s already ruled against you? Merely repeating arguments you’ve already made will not do. Motions for rehearing are rarely successful, but if you’re going to bring one, focus on problems with the court’s opinion and any new decisions that may have led the court to decide the case differently. And whatever you do, don’t make it personal.

Higher court review presents its own set of challenges. Are the issues you would take up important to others besides your client? Do opinions from the lower courts conflict on those issues? Has a dissenting opinion given you a framework for structuring a petition likely to catch the justices’ attention? Perhaps most importantly, does the client have the economic fortitude to continue fighting after losing in the court below?

Leave your questions or comments below, or use the hashtag #APandP to facilitate discussion on Twitter via @AppellaTex or @dtoddsmith. We will conclude the series on April 6 with Lesson 8: Tips and Strategies for Marketing an Appellate Practice.

D. Todd Smith
About the Author

D. Todd Smith is an Austin-based civil appellate specialist who works with trial teams from the earliest stages of litigation. In trial courts, he takes the lead on strategic analysis and briefing, jury charges, and potentially dispositive motions, all with a focus on preserving error and positioning cases for appellate review.

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