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Front Matter Source: Litigation, Vol. 25, No. 2, APPEALS (Winter 1999) Published by: American Bar Association Stable URL: http://www.jstor.org/stable/29760044 . Accessed: 10/06/2014 06:43 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. . American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to Litigation. http://www.jstor.org This content downloaded from 91.229.229.157 on Tue, 10 Jun 2014 06:43:08 AM All use subject to JSTOR Terms and Conditions

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Page 1: APPEALS || Front Matter

Front MatterSource: Litigation, Vol. 25, No. 2, APPEALS (Winter 1999)Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29760044 .

Accessed: 10/06/2014 06:43

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to Litigation.

http://www.jstor.org

This content downloaded from 91.229.229.157 on Tue, 10 Jun 2014 06:43:08 AMAll use subject to JSTOR Terms and Conditions

Page 2: APPEALS || Front Matter

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Page 3: APPEALS || Front Matter

Table of Contents Litigation Winter 1999 Volume 25 Number 2

Opening Statement: 1 Barbara M.G. Lynn The Road Less Traveled

From the Bench: 3 Richard A. Posner

Convincing a Federal Court of Appeals

APPEALS Appeals: The Classic Guide 6 William Pannill

Oral Argument: 12 Talbot D'Alemberte The Continuing Conversation

An Interview with A. Raymond Randolph 16 Jeffrey Cole

Amicus Practice: 25 David B. Smallman New Rules for Old Friends

Pointers on Preserving the Record 31 Sylvia H. Walbolt and Susan L. Landy

Arguing for Changes in the Law 37 James C. Schroeder and Robert M. Dow, Jr.

Interlocutory Appeals 42 R. Hewitt Pate

Rehearing Motions: 48 David Giles and Bruce Brown

The Switch of Minds That Saved The Times

Legal Lore: Wild Bill Hickok: 51 Robert Aitken The Two Trials of Jack McCall

Trial Notebook: 55 James W. McElhaney The Witness Doesn't Remember

Advance Sheet 57 R. Bruce Beckner

Literary Trials: A Fresh Look at 72 Jacob Rabkin

Shakespeare's The Merchant of Venice

The cover and article illustrations for this issue is by W. B. Park.

His studio is Park-Art, 110 Park Avenue South, Winter Park, Florida 32789

Litigation (ISSN 0097-9813) is published quarterly by the Section of Litigation, American Bar Association, 750 N. Lake Shore Drive, Chicago, IL 60611. Periodical postage paid at Chicago, IL and additional mailing offices. Subscription price for Section members is $10 (included in $45 membership dues). Institutions and individuals not eligible for Association membership may subscribe to Litigation for $40 a year ($45 for foreign countries). Per copy price to members and nonmembers is $12. Additional copies of issues published in the past two years may be purchased to the extent available from the Order Fulfillment Department, ABA; 312/988-5522. Issues published more than two years ago are sold by William S. Hein & Co., 1285 Main Street, Buffalo, NY 14209. Correspondence and manuscripts should be sent to the Managing Editor, Cie Brown Armstead. POSTMASTER: Send address changes to Litigation, American Bar Association, 750 N. Lake Shore Drive, Chicago, IL 60611. For permission to reprint, write to Copyright Dept., American Bar Association, 750 N. Lake Shore Drive, Chicago, IL 60611. Copyright ? 1999, American Bar Association. All rights reserved. http://www.abanet.org/litigation/home.html

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Page 4: APPEALS || Front Matter

Appeals As any six-year-old can tell you, when Dad says "no," you can always ask Mom. And when Mom says "no," just ask Dad. If the concept of appealing an adverse decision is not inbred, then it is surely learned at a very young age.

Law students learn about appeals early in the game as well. The first lawyering exercise that most law students

perform is an appellate moot court. Often, their first written

project is an appellate brief. And answering the professor's questions in class is not very different from being grilled by an appellate panel.

But as any experienced appellate advocate can tell you, there is more to handling an appeal than simply "asking

Mom," writing briefs, or answering questions. If you are the appellant, the trick is first to pique the court's interest and then to convince the judges that one of their brethren was wrong. If you are the respondent, you must often face the challenge of explaining why what looks like a mis? take?or worse, an injustice?really did not tip the balance below. And in pursuing your goal, you must often summa? rize weeks of trial, cartons of exhibits, and volumes of law into a 50-page brief and a 20-minute argument.

This issue of Litigation looks at the appellate process from several perspectives: the strategy of argument and

persuasion, the nature of the decision-making process, the nuts and bolts of appellate rules and procedures. It does not pretend to be an exhaustive manual for handling an

appeal, but it does include observations and insights that will make both the expert and the neophyte better appel? late advocates:

? Former Litigation Editor-in-Chief William Pan nill reviews the work of a true appellate legend? Frederick Bernays Wiener. An experienced and successful advocate himself, Pannill mines the

gold from Wiener's work and offers a few insights of his own. Together, Pannill and Wiener explain how to write effectively and how to persuade.

? Talbot D'Alemberte, a former President of the American Bar Association, compares oral argument to a conversation about the law. He suggests ways to handle difficult judges and difficult questions as he shares his considerable appellate experience.

? Litigation Associate Editor Jeffrey Cole inter? views Hon. A. Raymond Randolph of the U.S. Court of Appeals for the D.C. Circuit. In the first installment of a two-part interview that will con? clude in the next issue of Litigation, Cole and

Randolph discuss such topics as arguing before the United States Supreme Court, persuasive brief

writing, synthesizing complex cases at oral argu? ment, and living the life of an appellate judge.

? David B. Smallman addresses the new rules and standards that are being applied to arnici curiae. He notes that the bar for acceptance of amicus briefs has been raised, and he suggests ways for amicus counsel to clear the hurdle.

? Sylvia H. Walbolt and Susan L. Landy discuss

preserving the appellate record. They view trial court motions and objections from the perspective of the appellate advocate and explain how to ensure that appellate issues will not be waived and fall on deaf ears.

? James C. Schroeder and Robert M. Dow, Jr., suggest ways for the appellate advocate to make new law. They note the varying role of stare deci sis in cases involving constitutional, common

law, and statutory interpretations; and they offer

strategies for winning even when the case law is stacked against you.

? R. Hewitt Pate looks at ways to obtain appellate review before final judgment. He chronicles numer? ous cases accepting or refusing to review interlocu?

tory appeals, and he suggests ways to make it more

likely that an appellate court will hear your appeal even before the end has come.

? David Giles and Bruce Brown write about their

happy experience with the rarest of legal animals? the successful motion for rehearing. As they tell their story, Giles and Brown provide insight into what made their motion successful and explain how an appellate advocate can overcome the long odds

against winning such a motion. ?Lawrence J. Vilardo

Litigation Winter 1999 Volume 25 Number 2

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