The Top Ten Appellate Traps (And How To Avoid Them)

Robert H. Thomas
Damon Key Leong Kupchak Hastert

rht@hawaiilawyer.com
www.inversecondemnation.com

1. Trap: Is that judgment appealable? Fix: You, opposing counsel, and the circuit court
must work together to ensure judgment is appealable, even if you are the prevailing
party below/appellee. Jenkins, Bailey, Waikiki, Weisenberg, and Joshua. Corollary:
know the difference between a Rule 54(b) appeal, and a 641-1 interlocutory appeal.

2. Trap: Not setting the case up in circuit court for victory on appeal. Fix: Think about the
issues, identify those which are not settled, protect the record. Go for the narrowest rul-
ing possible that will still give you a win. Corollary: remember that Hawaiis highest
court is still not THE supreme court.

3. Trap: Missing the window to apply for attorneys fees. Fix: Pay attention to HRAP 39
and Coupe.

4. Trap: Details (and the Rules) matter. Fix: Read the rules, follow them; ask the Clerk or
the staff attorneys if unclear. Corollary: Just because the Rules dont say it, doesnt
mean you cant do it.

5. Trap: Not recognizing the roles each appellate court sees itself as playing. Fix: Try to
put yourself in the Justices/Judges place. Hint: Standard of Review is your mantra.

6. Trap: Every possible issue is important. Fix: Do your job, and winnow the questions
presented on appeal to the most critical issues, even if it means jettisoning Point of Ap-
peal No. 8 (client relations is important here). Corollary: know when to hold em, and
when to fold em.

7. Trap: Trial lawyers make good appellate counsel (they know the case best, right?). Fix:
Consider appellate counsel who can evaluate the case objectively and are not invested in
the outcome. Corollary: opposing counsel and party are (usually) not evil.

8. Trap: Not considering amicus support. Fix: Muster possible amici as early in the pro-
cess as possible.

9. Trap: Not seeking oral argument. Fix: Seek oral argument. Corollary: Knowing when
to get more briefing, and when to let it go. Oral Argument Trap: Not being prepared
for practical questions. Fix: See Item # 5, above.

10. Tips for opposing counsel: if the rules dont require a Table of Contents/Authorities,
just skip it, your goal is to lessen your work, not make filing briefs more difficult for you.
Tips for opposing counsel, Part II: Format doesnt matter. Fix: (Keep doing what
you are doing.)

11. (Bonus) Trap: Not getting appellate experience. Fix: Participate in the HSBAs Appel-
late Pro Bono Program!