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.

PRESERVE THE ISSUES FOR APPEAL

              Waiver is the easiest way to dispose of an issue on appeal. The issue must first be raised in the trial court. Aside from jurisdictional inquiries and fundamental error, the appellate court generally “does not make first-instance determinations of disputed issues of either law or fact in the exercise of its appellate jurisdiction.”[1] Keep in mind that post-trial motions – such as a motion for new trial, motion to vacate or motion to reconsider – may affect what issues can be raised on appeal and the time to appeal.[2] Remain conscientious even after the petition in error is filed. “Issues raised in the Petition in Error but omitted from the brief may be deemed waived.”[3]

STYLE OF THE PETITION IN ERROR

              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.

BINDING THE RECORD

              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.

PARTY NAMES

              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.

CITE TO THE RECORD

              “Facts stated in the Summary of the Record must be supported by citation to the record where such facts occur.”[8] The appellant bears full responsibility for producing a record that supports the errors alleged.[9] The appellant must “affirmatively show the alleged error from the record on appeal.”[10] Otherwise, the appellate court will presume no prejudicial error was committed by the trial court.[11] It is not the appellate court’s duty to search the record for error.[12] You should continue to cite to the record when making your argument. Along the same lines, if you are the appellee and fail to file an answer brief, the appellate court is under no duty to search the record for some theory to sustain the trial court’s judgment.[13]

STANDARD OF REVIEW

              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.

HEADINGS

              How you separate and phrase the propositions of error and the headings and subheadings in the brief are additional tools you have to achieve clarity and simplicity.[14] Subheadings can make complicated issues more easily digestible. Also, use headings to separate alternative arguments (e.g., “Even if the court finds …”). If you use poignant headings and subheadings, the subject index in the front of your brief alone should tell the court why the case should be decided in your favor.[15]

CITE TO AUTHORITY

              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.

MAKE YOUR ARGUMENT

              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.

REPLY BRIEF

              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.

PARALLEL CITATIONS FOR OKLAHOMA CASES

              OSCN is the official publisher of Oklahoma appellate court decisions.[22] The Pacific Reporter is the unofficial reporter. The Oklahoma Supreme Court Rules require parallel citations to both OSCN and the Pacific Reporter.[23] Cite to the specific paragraph number for the OSCN citation and the pinpoint page number for the Pacific Reporter if it is available to you.[24]

OKLAHOMA STATUTES

              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.

LEGAL WRITING

              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.

JURISDICTIONAL SCREENING

              The Supreme Court has a duty to inquire into its own appellate jurisdiction and the jurisdiction of the court below.[26] The Supreme Court and the Court of Civil Appeals may, and often do, issue show cause orders and sua sponte dismiss appeals for untimeliness, lack of appealable order and mootness.[27] The appellee may also seek to dismiss the appeal by motion or in the answer brief.[28]

MOTIONS TO RETAIN

              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 ARGUMENTS

              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.

HOW LONG WILL IT TAKE FOR YOUR APPEAL TO BE DECIDED?

              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.

PETITION FOR REHEARING

              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.

APPEAL-RELATED ATTORNEY FEES

              A party may seek appeal-related attorney fees if fees are authorized by statute or contract.[40] The Supreme Court recently reaffirmed “that a prevailing party who is entitled to attorney fees in the district court is also entitled to recover appellate attorney fees.”[41] In Friend v. Friend, the Supreme Court clarified that where fees are mandatory in the district court, fees are also mandatory in the appellate court.[42] However, if the trial court has discretion to award attorney fees, the appellate court’s decision on the request for appeal-related attorney fees is also discretionary.[43] When entitlement to attorney fees depends on prevailing party status, bear in mind, “A prevailing party is one who prevails on the merits of the action or for whom final judgment is rendered.”[44] Prevailing party status may change during the course of the litigation and as a result of the appellate court’s decision. If the appellate court remands the case to the trial court for a new trial or further proceedings and a prevailing party cannot yet be determined, an application for appeal-related attorney fees shall be made to the trial court.[45]

              Requesting attorney fees in your appellate brief is no longer allowed. That rule changed in 2012. Now, “A motion for an appeal related attorney’s fee must be made by a separately filed and labeled motion in the appellate court prior to issuance of mandate.”[46] Appellate courts routinely deny requests tucked inside appellate briefs in violation of Okla.Sup.Ct.R. 1.14. Additionally, do not include evidentiary material as to the amount of fees with your motion.[47] If the appellate court grants the motion for appeal-related attorney fees, it will remand the case to the trial court for a determination of the amount.[48]

              A Court of Civil Appeals order granting or denying a motion for appeal-related attorney fees may be reviewed by the Supreme Court on certiorari. Whether a party has a statutory or contractual right to appellate attorney fees is a question of law subject to de novo review.[49] If the appellate attorney fees award is discretionary, the decision is reviewed for an abuse of discretion.[50]

WEIGHT OF AUTHORITY

              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.

              In 2022, the Supreme Court amended Rule 1.200(c) to permit parties to cite unpublished opinions of the Court of Civil Appeals in briefs and other materials presented to the court.[56] The rule requires that parties include either a hyperlink to the opinion or attach a copy of the opinion to the brief.[57] While this change does not give the unpublished opinion any weight, it may be useful when there is no binding precedent. Some judges and staff attorneys are interested in how other divisions have ruled on the same issue. Furthermore, a conflict between divisions of the Court of Civil Appeals could later be a reason for the Supreme Court to grant certiorari.[58]

              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.”

              Author’s Note: The views expressed in this article are those of the author and do not necessarily reflect those of the Supreme Court of Oklahoma, the Oklahoma Court of Civil Appeals, any justice, any judge, the marshal, any referee or any other judicial staff attorneys.

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ABOUT THE AUTHOR

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.

 

 

 

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ENDNOTES

[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).

[6] Id.

[7] Id.

[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.

[11] See id.

[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).

[24] The Oklahoma Supreme Court Rules require citations to the specific paragraph number on OSCN, but the pinpoint page number for the Pacific Reporter is optional. Id.

[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.

[33] See id.

[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).

[48] Id.

[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).

[53] Id.

[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).

[57] Id.

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