Oklahoma Bar Journal

A Courtside Seat: 20 Tips for Your Civil Appeal

              Most of the justices and judges of the Supreme Court of Oklahoma and the Court of Civil Appeals have two law clerks – or staff attorneys, as the position is known in the state appellate courts.

              Staff attorneys are not the superstars playing in the big game, but with courtside seats, we get an incredible view of the action. We appreciate well-executed appellate advocacy but also see some of the same fouls committed over and over again. This article offers simple suggestions for strengthening your appellate practice.

              The petition in error is your first opportunity to familiarize the court with your case, and it begins with the case caption and the party designations. When there are multiple parties, third-party claims, counter-claims, cross-claims, a counter-appeal and/or a cross-appeal, the case caption can get complicated. Accurate and complete information in the case caption helps the court quickly figure out who is suing who and what relief is being sought on appeal. The style and sequence of the parties on the petition in error should be the same as the style and sequence on the judgment or order being appealed.[4] When there are multiple parties, do not use “et al.“[5] Write out the names of every party to the proceeding below and on appeal, even if it takes multiple pages. This is true even when the judgment or order from which you are appealing uses “et al.” Use both the trial court and appellate court designations, such as plaintiff/appellant and defendant/appellee.[6] If not all of the parties below are parties to the appeal, indicate that by using “and” to separate those parties in the style and include only a trial court designation.[7] Likewise, if someone is seeking appellate relief but was not included in the caption on the order being appealed, include only an appellate designation.

              For an appeal using the Oklahoma Supreme Court Rule 1.36 accelerated procedure, where you control how the record is prepared, bind the record in such a way that the pages lay flat (spiral binding or notebook), include index tabs and number every page in the lower right corner. Oklahoma Supreme Court Rule 1.36(d)(2) requires an “Index to Contents of Record” that uses numeric references that correspond to tabs for each of the documents or transcripts included in the record.

              Use a name or descriptor, such as “father” or “bank,” rather than the party designations – e.g., plaintiff, defendant, appellant, appellee – in your briefs. Personalized descriptors help us remember the cast of characters. This is particularly helpful in multi-party litigation or when there are parties with the same or similar names.

              Do not gloss over the standard of review. The standard of review is the heartbeat of appellate decision-making. Before you copy and paste the standard of review into your brief, spend some time really thinking about it. Research it. Don’t just assume you know what it is. All your arguments should be built around the proper standard of review.

              Briefs are often submitted with sparse citations. You must cite authority to support each proposition of error.[16] “Argument without supporting authority will not be considered.”[17] Finally, if you have a first impression issue and there is no Oklahoma law on point, cite relevant case law from other jurisdictions. It may be persuasive.

              You must make your argument.[18] “[A] mere assertion, in general terms, that the ruling of the trial court is wrong will not be considered as having been made.”[19] I often see bold, conclusory statements that the trial court erred or should be affirmed followed by a case citation and nothing more. Connect the dots. How should the proposition of law and/or facts of the case cited inform the court’s analysis in this case? Is it analogous? Misplaced? Can it be distinguished? If there is authority that directly cuts against your position, acknowledge it and argue with specificity why that case should not control in the present matter.

              Filing a reply brief is optional.[20] If you choose to file a reply brief, respond directly to arguments made in the answer brief. New arguments should not be raised for the first time in a reply brief.[21] At the same time, a reply brief rehashing arguments made in your brief in chief has little value.

              Historically, the official Oklahoma Statutes have been published in hardbound volumes every 10 years and then updated annually with supplement volumes. However, the state is no longer authorized to purchase and distribute the hardbound volumes.[25] The navy blue 2011 decennial statutes and the 2020 supplement were the last volumes printed and widely distributed to judges, government offices and public libraries. Many practitioners reference other compilations of the statutes, e.g., OSCN, “green books” and Westlaw. This change should not affect your legal research methods, as these sources continue to be updated.

              Through the years, I have developed some guidelines for writing clear, concise, well-reasoned proposed draft opinions. These guidelines may also assist the advocate:

  • If there are more than 20 words in a sentence, there better be a darned good reason.
  • Write the purpose of each paragraph in the margin to evaluate organization.
  • Read the opinion from the losing party’s perspective and ask yourself, “Even if I don’t agree, is it well reasoned?”
  • You are not finished until you have read it aloud.

              The Supreme Court may retain an appeal on the court’s own motion or pursuant to a motion to retain.[29] If you file a motion to retain, use the three pages to focus on whether:

  • The issues involve an area of law undecided in Oklahoma;
  • Different divisions or panels of the Court of Civil Appeals are not in accord on the issues raised on appeal; and
  • The issues raised on appeal concern matters that will affect public policy, and any decision is likely to have widespread impact.[30]

              Oral argument is not a matter of right.[31] “A party desiring to present oral argument shall file a motion setting forth the exceptional reason that oral argument is necessary and the issues sought to be presented.”[32] You are allowed just two pages for your motion for oral argument.[33] With such limited space, I suggest you consider the following:

  • Is there a first impression or novel issue of law?
  • Every argument should have been made in the appellate briefs or record on appeal – what value will be added by oral presentation?
  • The amount in controversy and whether additional litigation expenses are justified
  • Judicial economy

              The court may order oral argument on its own motion, but if you want oral advocacy in the appellate court (and your client agrees to the extra expense and possible delay in decision), you should file a motion.

              Justices and judges have varying methods for managing their case assignments. However, all appeals involving deprived or allegedly deprived children, including the termination of parental rights, are prioritized.[34] Any party may request their appeal be placed on a fast-track docket.[35] Finally, keep in mind that Rule 1.36 “accelerated procedure” for appeals from summary judgments and certain dismissals refers to the expedited process for preparing the record and the fact there are no appellate briefs, not an expedited decision.

              Practitioners may wonder whether they should bother filing a petition for rehearing in the Court of Civil Appeals or go directly to filing a petition for writ of certiorari in the Supreme Court.[36] A party does not have to first seek rehearing in the Court of Civil Appeals prior to filing a petition for certiorari.[37] The Court of Civil Appeals grants rehearing only a few times a year. Rehearing is rarely granted because, most often, the petition just reargues the case.[38] If the opinion does not address an issue raised on appeal, definitely file a petition for rehearing.[39] It may simply have been overlooked.

              Opinions of the Court of Civil Appeals are either 1) unpublished, 2) published by order of the Court of Civil Appeals or 3) approved for publication by the Supreme Court. Most opinions issued by the Court of Civil Appeals are unpublished. The division issuing the opinion may vote to publish if it resolves novel or unusual issues.[51] On average, the Court of Civil Appeals publishes 10-15% of its decisions. Generally, opinions of the Court of Civil Appeals are persuasive only. Even when an opinion is released for publication by order of the Court of Civil Appeals, it is merely persuasive and has no precedential value.[52] Only if the Supreme Court orders a Court of Civil Appeals opinion approved for publication is it given precedential effect.[53] Such an opinion bears the notation “Approved for Publication by the Supreme Court.”[54] Only then may the Court of Civil Appeals case be cited as precedent.[55] In your briefs, use the parenthetical “(approved for publication by the Supreme Court)” to alert the judge and staff attorney reviewing your appeal that it is not merely a persuasive Court of Civil Appeals opinion. While it is extremely rare, sometimes the Supreme Court notation is not added to an OK CIV APP opinion on OSCN or Westlaw. If you find an OK CIV APP case that supports your position, double-check the appellate court docket on OSCN to see if the Supreme Court filed an order approving it for publication.

              This rule change begs the question: When conducting legal research, where can you find unpublished opinions of the Court of Civil Appeals? Unpublished opinions are available in PDF format on the OSCN appellate court docket, but that is only helpful if you are already familiar with the case and know a case number or the names of the parties. The Oklahoma Public Legal Research System has a searchable database of unpublished Court of Civil Appeals opinions dating back to the court’s establishment in 1968. The Oklahoma Public Legal Research System may be accessed by going to www.oklegal.onenet.net. You can also sign up for daily email notifications when unpublished opinions of the Court of Civil Appeals are filed by going to www.oscn.net and clicking on “Appellate Opinions Notification.”

Bevan G. Stockdell is a staff attorney for Chief Justice M. John Kane IV of the Oklahoma Supreme Court. She has served as a staff attorney for the Supreme Court and, previously, the Court of Civil Appeals since 2011. Ms. Stockdell is a graduate of the OU College of Law.

[1] In re Guardianship of Stanfield, 2012 OK 8, ¶27, 276 P.3d 989, 1001; see Hall v. GEO Grp., Inc., 2014 OK 22, ¶12, 324 P.3d 399, 404, (“jurisdictional inquires may be made by the courts at any stage of the proceedings”); Sullivan v. Forty-Second W. Corp., 1998 OK 48, ¶¶6-8, 961 P.2d 801, 802-03 (reviewing fundamental error even if not properly preserved for appeal).

[2] See generally Bevan G. Stockdell and Kimberly W. Carlson, “Reconsider Your Motion to Reconsider: How Post-Trial Motions Affect Your Civil Appeal,” OBJ, October 2019, at 12, available at https://bit.ly/3CeDAnD.

[3] See Okla.Sup.Ct.R. 1.11(k)(1), 12 O.S.2022, ch. 15, app. 1.

[4] See 20 O.S.2011 §3002; Okla.Sup.Ct.R. 1.25(b).

[5] See Okla.Sup.Ct.R. 1.25(b).

[8] Okla.Sup.Ct.R. 1.11(e)(1); see Okla.Sup.Ct.R. 1.11(j).

[9] See Ray v. Ray, 2006 OK 30, ¶12, 136 P.3d 634, 637.

[10] Fleck v. Fleck, 2004 OK 39, ¶12, 99 P.3d 238, 241.

[12] See Peters v. Golden Oil Co., 1979 OK 123, ¶3, 600 P.2d 330, 331.

[13] See Sneed v. Sneed, 1978 OK 138, ¶10, 585 P.2d 1363, 1366.

[14] See Okla.Sup.Ct.R. 1.11(f).

[15] See Okla.Sup.Ct.R. 1.11(d).

[16] See Okla.Sup.Ct.R. 1.11(f).

[17] Okla.Sup.Ct.R. 1.11(k)(1); see Peters, 1979 OK 123, ¶3, 600 P.2d at 331.

[18] See Okla.Sup.Ct.R. 1.11(f).

[19] Peters, 1979 OK 123, ¶3, 600 P.2d at 331; see Cox Okla. Telecom, LLC, v. State ex rel. Okla. Corp. Comm’n, 2007 OK 55, ¶33, 164 P.3d 150, 162.

[20] See Okla.Sup.Ct.R. 1.10(a).

[21] See Cox, 2007 OK 55, ¶33, 164 P.3d at 162-63.

[22] See In re Official Publication of Decisions, 2013 OK 109; Okla.Sup.Ct.R. 1.200(a).

[23] See Okla.Sup.Ct.R. 1.200(f)(1).

[25] As of Nov. 1, 2020, the secretary of state is only authorized to provide for the electronic publication of the Oklahoma Statutes and session laws. See 75 O.S.2022 §13. The Oklahoma Statutes, session laws and Oklahoma Constitution are available on the secretary of state’s website at https://govt.westlaw.com/okjc.

[26] See Hall, 2014 OK 22, ¶12, 324 P.3d at 404.

[27] What constitutes an appealable order or event is beyond the scope of this article. A helpful discussion of appealable orders is available at Ann Hadrava, “Appealable Orders: Asking the Key Questions,” OBJ, October 2019, at 18, available at https://bit.ly/3Vy3x8E.

[28] See Okla.Sup.Ct.R. 1.6(c).

[29] See Okla.Sup.Ct.R. 1.24(a).

[30] See Okla.Sup.Ct.R. 1.24(b)-(c).

[31] See Okla.Sup.Ct.R. 1.9; Okla.Sup.Ct.R. 1.176.

[32] Okla.Sup.Ct.R. 1.9.

[34] 10A O.S.2022 §1-5-103(C).

[35] See Okla.Sup.Ct.R. 1.17(III).

[36] See Okla.Sup.Ct.R. 1.777 (petition for rehearing); Okla.Sup.Ct.R. 1.178 (petition for writ of certiorari).

[37] See Okla.Sup.Ct.R. 1.178(b)(1).

[38] Rehearing is not for rearguing a question that has been previously presented and fully considered by this court. Tomahawk Res., Inc. v. Craven, 2005 OK 82, supp. op. ¶1, 130 P.3d 222, 224-25. Likewise, it is not for presenting points the losing party overlooked, misapprehended or failed to fully address. Id. ¶1, at 225.

[39] Generally, rehearing is granted: 1) to correct an error or omission, 2) to address an unresolved jurisdictional issue or 3) to clarify the opinion. Id. ¶1, at 224-25.

[40] See 12 O.S.Supp.2012 §696.4(C); Patel v. Tulsa Pain Consultants, Inc., P.C., 2022 OK 56, ¶6, 511 P.3d 1059, 1061; Okla.Sup.Ct.R. 1.14(B).

[41] Friend v. Friend, 2022 OK 29, ¶1, 506 P.3d 1092, 1093.

[42] See id. ¶¶5-8, at 1094-95.

[43] Id. ¶¶9-11, at 1095.

[44] Comanche Nation of Okla. ex rel. Comanche Nation Tourism Ctr. v. Coffey, 2020 OK 90, ¶25, 480 P.3d 271, 279.

[45] See 12 O.S. §696.4(D).

[46] Okla.Sup.Ct.R. 1.14(B); see 12 O.S. §696.4(C).

[47] See 12 O.S. §696.4(C).

[49] See Patel, 2022 OK 56, ¶6, 511 P.3d at 1061.

[50] See Friend, 2022 OK 29, ¶4, 506 P.3d at 1094.

[51] See Okla.Sup.Ct.R. 1.200(d)(2); see also 20 O.S.2011 §30.5, “Opinions of the Court of Civil Appeals which apply settled precedent and do not settle new questions of law shall not be released for publication in the official reporter.”

[52] See Skinner v. John Deere Ins. Co., 2000 OK 18, ¶19, 998 P.2d 1219, 1223-24; Okla.Sup.Ct.R. 1.200(d)(2).

[54] Okla.Sup.Ct.R. 1.200(d)(2).

[55] See 20 O.S. §30.5.

[56] See Okla.Sup.Ct.R. 1.200(c)(6) (as amended by order of the Supreme Court, 2022 OK 70, eff. July 1, 2022).

[58] See Okla.Sup.Ct.R. 1.178(a)(3).

Originally published in the Oklahoma Bar Journal – OBJ 94 Vol 2 (February 2023)

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