Edited by David F. Herr, Eric J. Magnuson, Michael E. Gans, Hon. Dana L. Oxley, Jon Schmidt & Aaron Van Oort
The 9th edition the Eighth Circuit Appellate Practice Manual is designed to be a primary resource for attorneys representing clients in its namesake jurisdiction. Written with an eye for comprehensiveness and edited to serve as a quick reference tool, the manual offers indispensable aid, both in the office and the courtroom itself. The 9th Edition of the Eighth Circuit Appellate Practice Manual features more than 30 sample forms, as well as an updated comprehensive subject index and table of authorities. Its chapters trace the breadth of Eighth Circuit action – from basics like office locations and biographies of current judges to more involved issues regarding specific types of appeals – and are supplemented throughout with forms, checklists, and practice tips gained from the authors’ unparalleled experience on both sides of the bench.
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CHAPTER 1
Eighth Circuit Basics
The Eighth Circuit Defined; Clerk’s Office; Procedures of General Applicability; Decisionmakers, Panels, and Related Issues; Biographical Information on Current Eighth Circuit Judges; Supporting Legal Personnel and Resources; Circuit Administration; Judicial Conference.
– Thomas H. Boyd
CHAPTER 2
Professional Responsibility and the Appellate Advocate
Introduction; Competence; Scope of Representation; Diligence; Communication; Conflicts of Interest; Candor in Presenting Record; Frivolous Appeals; The Appellate Brief; Oral Argument; Civility; Conclusion.
– Mark R. Bradford
CHAPTER 3
Appellate Court Jurisdiction
Introduction to Court of Appeals Jurisdiction in Civil Cases; Statutorily Defined Bases for Jurisdiction; Judicially Defined Bases for Jurisdiction; Justiciability: “Cases and Controversies”; Territorial and Subject Matter Limitations on Jurisdiction.
– James R. Layton
CHAPTER 4
Persons Who May Take or Participate in Appeals
Right to Appeal (Who May Take An Appeal?); Parties to Appeal; Multiple-Party Appeals; Amicus Curiae; FORM 4-1 – Notice of Case Involving Constitutional Question; FORM 4-2 – Motion to Intervene Constitutional Question; FORM 4-3 – Motion to Substitute Party; FORM 4-4 – Notice of Joint Appeal; FORM 4-5 – Motion to Consolidate Appeals; FORM 4-6 – Stipulation to Consolidate Appeals.
– Bruce Jones & Jeffrey P. Justman
CHAPTER 5
Initiating Appeals from District Court Decisions
Chapter Scope and Key Resources; Appeals as of Right; Permissive Appeals; Other Mechanics.
– Liz Kramer & Jason B. Marisam
CHAPTER 6
Responding to an Appeal and Voluntary Dismissal
Introduction; Motions to Dismiss Appeal; Cross-Appeals and Separate Appeals; Responding to Appellant’s Appeal; FORM 6-1 – Stipulation of Dismissal of Appeal.
– Lisa L. Beane
CHAPTER 7
Effect of Appeal, Stays, and Supersedeas
Introduction; General Effect of Appeal (Jurisdiction); Obtaining Stay of Enforcement of District Court’s Judgment; Alternative to Stay – Expedited Appeal; FORM 7-1 – Motion for Stay; FORM 7-2 – Stipulation for Stay; FORM 7-3 – Motion to Approve Bond; FORM 7-4 – Motion to District Court for Stay of Execution of Judgment; FORM 7-5 – Opposition to Motion for Stay; FORM 7-6 – Motion to Court of Appeals for Stay.
– Scott M. Flaherty
CHAPTER 8
The Record on Appeal
Introduction to the Record on Appeal; Designating the Standard Record; Agreed Statement of Record – FED. R. CIV. P. 10(d); Correcting and Modifying the Record – FED. R. CIV. P.10(e); Transmitting the Record – FED. R. CIV. P. 11; Filing Record in Court of Appeals – FED. R. CIV. P. 12(c); Supplementing the Record; FORM 8-1 – Certificate as to No Transcript.
– Bryan C. Walsh
CHAPTER 9
Motions Practice and Summary Disposition of Appeal
Motions Practice, Generally; Types and Determinations of Motions; Motions for Substantive Orders; Initiating Motions; Response to Motion; Reply to Response; Argument on Motion; Ruling on Motion; FORM 9-1 – Affidavit of [Name of Affiant]; FORM 9-2 - Motion.
– Erica A. Holzer
CHAPTER 10
Brief Writing and Appendices
Introduction; Types of Appeal Briefs; Requirements for Appeal Briefs; Contents of Appeal Briefs; Writing the Brief; The Appendix; CHECKLIST 10-1 – Civil Case Briefing Checklist; CHEKCLIST 10-2 – Criminal Case Briefing Checklist; FORM 10-3 – Notice of Intent to Proceed by Separate Appendices.
– Damien A. Riehl & Barbara A. Smith
CHAPTER 11
Hearing and Argument
Introduction; The Court’s Procedure with Respect to Oral Argument; How Do Judges Prepare for Oral Argument?; What Should Attorneys Do to Prepare for Oral Argument?; The Big Day – Presenting the Oral Argument; Conclusion.
– Hon. Dana L. Oxley
CHAPTER 12
Scope and Standards of Review
Scope of Review; Waiver Issues on Appeal; Limitations on the Scope of Appeal; Standards of Appellate Review.
– Katherine S. Barrett Wiik & Ashleigh Leitch
CHAPTER 13
Disposition of Appeal
Introduction to Decision-Making by the Eighth Circuit; Screening of Cases for Oral Argument or Submission on the Briefs; Behind the Scenes at Oral Argument; Preparation of Opinion; Entry of Judgment and Issuance of Mandate.
– Aubrey Zuger & Althea M. Huyser
CHAPTER 14
Post-Judgment Proceedings
Rehearing (Reconsideration) by Panel; Rehearing En Banc; The Mandate; Writ of Certiorari; FORM 14-1 – Motion to Extend Time to File Petition for Rehearing; FORM 14-2 – Petition for Rehearing; FORM 14-3 – Response to Petition for Rehearing; FORM 14-4 – Motion for Leave to File Brief as Amicus Curiae; FORM 14-5 – Motion to Stay Issuance of Mandate.
– Stephen P. Safranski
CHAPTER 15
Civil Appeals of Magistrate Judges’ Decisions
Overview of Proceedings Before Magistrate Judges; Review of Magistrate Judges’ Decisions Where There Was No Consent to Reference; Review of Magistrate Judges’ Decisions Where Parties Consented to Reference.
– Theresa K. Baumann
CHAPTER 16
Review in Bankruptcy Cases
Introduction; Jurisdiction; Right to Appeal; Time for Appeal; Initiating Appeal as of Right; Election of Forum; Initiating Appeal by Leave; Stay Pending Appeal; Indicative Rulings; Amicus Curiae; Intervening in an Appeal; Prosecution of Appeals to the Bankruptcy Appellate Panel for the Eighth Circuit; Disposition and Publication; Costs; Admission to Practice Before the Bankruptcy Appellate Panel; Prosecution of Appeals to the District Court; Voluntary Dismissal; Duties of Clerk on Disposition of an Appeal; Stay of Judgment; Appeals to Eighth Circuit Final Judgment, Decree, or Order Entered on Appeals in Bankruptcy Cases.
– Charles E. Nelson
CHAPTER 17
Direct Review of Administrative Agency Decisions
Introduction; Availability of Direct Review in the Court of Appeals; Persons Who Can Seek Review of an Agency Decision; Initiating Direct Review in the Court of Appeals; Procedures After Court of Appeals Review is Initiated; Standards of Review.
– Elizabeth M. Brama, Lauren E. Pockl & Peter E. Madsen
CHAPTER 18
Appeals of Tax Decisions
Introduction and Scope; United States Tax Court Jurisdiction and Proceedings; Jurisdiction Over Particular Cases; Overview of Proceedings for Review in Tax Deficiency Determinations; Jurisdiction of the Court of Appeals in Tax Cases; Standards of Review in Tax Appeals; Procedure for Review in Court of Appeals; Time for Appeal; Venue on Appeal; Notice of Appeals; Response to Notice of Appeal: Cross-Appeals and Protective Appeals; Record on Appeal; Docketing the Appeal; Stay Pending Appeal: Bond; Briefing and Oral Argument; FORM 18-1 – Notice of Appeal to Court of Appeals.
– John P. Barrie & Michael J. Kaupa
CHAPTER 19
Criminal Appeals and Habeas Corpus Appeals
Introduction; Special Rules Governing a Criminal Appeal; Initiating a Criminal Appeal; Preparing for the Expedited Criminal Appeal; Selecting the Issue for a Criminal Appeal; Drafting the Brief for a Criminal Appeal; Handling the Ostensible No-Merit Criminal Appeal; Preparing for Oral Argument in a Criminal Appeal; Taking Post-Decision Actions in a Criminal Appeal; The Habeas Corpus Appeal.
– Paul C. Engh & Eric J. Riensche
CHAPTER 20
Review by Extraordinary Writ in Civil Cases
Introduction; Availability of Review by Writ; Extraordinary Circumstances Justifying Issuance of Extraordinary Writes; Procedure; FORM 20-1 – Petition for Writ of Mandamus; FORM 20-2 – Petition for Writ of Prohibition; FORM 20-3 – Answer to Petition for Writ of Mandamus; FORM 20-4 – Answer to Petition for Writ of Prohibition.
– Kay Nord Hunt & Michelle K. Kuhl
CHAPTER 21
Costs on Appeal
Introduction; Who May Tax Costs; What Costs Are Recoverable; Procedure for Recovering Costs; Appellate Attorney’s Fees; Interest on District Court Judgment; FORM 21-1 – Appellant’s Bill of Costs and Affidavit of Counsel; FORM 21-2 – Motion for Attorney’s Fees on Appeal; FORM 21-3 – Affidavit in Support of Motion for Attorney’s Fees on Appeal.
– Benjamin J. Wilson
CHAPTER 22
Sanctions
Introduction to Sanctions on Appeal; Sanctions on Appeal; Determining the Sanctions; Review of Decisions on Sanctions; FORM 22-1 – Motion for Sanctions.
– Bruce Jones
CHAPTER 23
Rules, Precedents, and Related Issues
Federal Rules and Laws of Practice and Procedure; Choice Between Federal Procedure and State Law; Federal Law Precedents; State Law Precedents and Related Issues; Law of the Case; Application of New Law on Appeal.
– Adam Hansen & Kyle R. Kroll
CHAPTER 24
Certiorari Practice in the U.S. Supreme Court
Introduction to U.S. Supreme Court Certiorari Practice; Petitioning the Court for a Writ of Certiorari; Responding to a Petition for Certiorari; Reply and Supplemental Briefs; Amici Curiae; Disposition of the Petition; Accelerated Review, Stays and Temporary Injunctions, and Additional Procedures.
– Aaron D. Van Oort & Nicholas J. Nelson
Table of Authorities
Subject Index
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