Edited by David F. Herr, Eric J. Magnuson, Michael E. Gans, Dana L. Oxley, Jon Schmidt & Aaron Van Oort
The 8th edition of 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. 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. The 8th Edition of the Eighth Circuit Appellate Practice Manual features the Eighth Circuit Local Rules and Internal Operating Procedures, as well as a newly-updated comprehensive subject index and table of authorities.
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Eighth Circuit Basics
The Eighth Circuit Defined, Clerk’s Office; Procedures of General Applicability; Decision Makers, Panels, and Related Issues; Biographical Information on Current Eighth Circuit Judges; Supporting Legal Personnel and Resources; Circuit Administration; Judicial Conference.
– Thomas H. Boyd
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.
– Karl E. Robinson
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
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 Cases 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
Initiating Appeals from District Court Decisions
Chapter Scope and Key Resources; Appeals as of Right; Permissive Appeals; Other Mechanics.
– Liz Kramer
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.
– Wayne S. Moskowitz
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
The Record on Appeal
Introduction to Record on Appeal; Designating the Standard Record; Agreed Statement of Record; Correcting and Modifying the Record; Transmitting the Record; Filing the Record in the Court of Appeals; Supplementing the Record; FORM 8-1 – Certificate as to No Transcript.
– Bryan C. Walsh
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
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.
– Kenneth Lee Marshall & Damien A. Riehl
Hearing and Argument
Introduction; The Court’s Procedure with Respect to Oral Argument; What Do Judges Do to Prepare for Oral Argument?; What Should Attorneys Do to Prepare for Oral Argument?; The Big Day – Presenting the Oral Argument; Conclusion.
– Dana L. Oxley
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 & Ted Sampsell-Jones
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.
– Jesse Mondry & Aubrey Zuger
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
Civil Appeals of Magistrate Judges’ Decisions
Overview of Proceedings Before Magistrate Judges; Review of Magistrate Judge’s Decisions Where There Was No Consent to Reference; Review of Magistrate Judge’s Decisions Where Parties Consented to Reference.
– Peter D. Gray
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
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 Court of Appeals; Procedures After Court of Appeals Review is Initiated; Standards of Review; FORM 17-1 – Petition for Review.
– Thomas E. Bailey, Elizabeth M. Brama & Lauren E. Pockl
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
Criminal and Habeas Corpus Appeals
Introduction; Types of Appeals in Criminal Cases; Preserving Errors for Appellate Review; Relationship with the Client; Decision to Appeal Following Conviction and Duty of Trial Counsel; Perfecting the Appeal; Release Pending Appeal; The Record on Appeal; Briefs; Oral Argument; Government Appeals; Post-Opinion Procedures; Collateral Relief in Criminal Cases: State Prisoners’ Federal Habeas Corpus Cases, Federal Prisoners’ Section 2255 Cases, and Capital Prisoners’ Subsection 3599(e) Representation.
– David R. Stickman & Jennifer Gilg
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.
– Rodney M. Confer & Jeanelle Lust
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; Federal Rule of Appellate Procedure 38, Damages and Costs for Frivolous Appeal; 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
Introduction to Sanctions on Appeal; Sanctions on Appeal; Determining the Sanctions; Review of Decisions on Sanctions; FORM 22-1 – Motion for Sanctions.
– Bruce Jones
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.
– Margaret C. Callahan & Mahesha P. Subbaraman
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.
– Bruce Jones
Table of Authorities
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