Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Tuesday, January 14, 2014

The New FRAP 28's "Rulings Presented for Review"

ErrorThis post continues our short series on the new, unified statement of the case under FRAP 28. For readers who are a little new to appellate practice, the third component may seem a bit vague. In addition to facts and procedural history, a contemporary statement of the case must also "identify[ ] the rulings presented for review, with appropriate references to the record." The advisory committee notes to Rule 28 do not explain the requirement further.

I'd be curious to hear others' thoughts on this requirement, but my assumption is that it is similar to the necessity in several state appellate courts to enumerate assignments of error--every ruling by the trial court argued to be erroneous and to justify some relief on appeal. In some of those states, the assignments of error are sometimes referred to as "jurisdictional" in the sense of preservation: the court can only grant relief for errors that are assigned (explicitly listed). The language used in the new FRAP 28 does not seem to go that far, but advocates would be wise to cautiously preserve each error in this section and to cross-check the list against arguments raised in the brief.

For advice from state appellate courts and practititioners with the more stringent assignments of error requirement, see the following sources from Washington and Virginia.

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Citation to the location in the record where the error was preserved is required in Colorado Appellate Rules. Generally, if it is in a transcript then the page and line numbers must be noted. If the error is preserved by motion, the first page of the motion is sufficient, but most people cite to the entire motion. Obviously, this rule requires an admission that a particular error was not preserved, where appropriate.

Posted by: Nelson Boyle | Jan 15, 2014 7:16:39 AM

Citation to the record to show preservation is great practice even when not explicitly required by the rules--great point! It can only enhance the advocate's credibility.

Posted by: Tonya Kowalski | Jan 15, 2014 9:16:07 AM

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