"Judges Are Not Ferrets" and Other Tips for Appellate Practice

The North Dakota Supreme Court website provides a link with Appellate Practice Tips. The Court is an especially appropriate source, because the North Dakota Supreme Court is also the state's appellate court, so they see just about everything.  And many of these tips are good in any practice setting, whether in court or at the bargaining table. 

Although some of the tips are fairly basic and restate conventional wisdom in this area, the tips are wide ranging, and many come from North Dakota cases.  Here are a few of my favorites: 

• "Civility is not too much to expect in a civilized society's alternative to brute force, stealth, and deception." See Jacobson v. Garaas, 2002 ND 181, ¶ 37, 652 N.W.2d 918.

• When you discover you are riding a dead horse, the best strategy is to dismount.

• A lawyer is not always protected by following the client's specific directions. See Jacobson v. Garaas, 2002 ND 181, ¶ 23, 652 N.W.2d 918.

• Summary judgment can't be reversed on appeal based on what you wish you had presented in the trial court, only on what was presented as competent evidence in the trial court.

• Not every lawyer excess is justified by the mantra of zealous representation. See Jacobson v. Garaas, 2002 ND 181, ¶ 23, 652 N.W.2d 918.

• "The best arguments are those that tell us how you believe we can do justice and maintain the integrity of the law at the same time." - former Justice Robert Vogel

• "Judges are not ferrets." Linrud v. Linrud, 552 N.W.2d 342 (N.D. 1996).

--JPF