Book notes: The Appellate Prosecutor: A Practical and Inspirational Guide to Appellate Advocacy (Ronald H. Clark ed. 2005)

 

This volume contains short chapters authored by various judges and attorneys on appellate practice from the prosecution's perspective.  In addition to the forward, there are seventeen chapters titled as follows:

1. Persuasion, Planning and Analysis for Appellate Advocacy
2. Writing the Brief
3. Sample Appellate Brief Template
4. Short Declarative Sentences: The Key to Good Legal Writing
5. Writing the Persuasive Brief (And Some Matters of Style)
6. Appellate Strategies
7. Research Resources: An Appellate Lawyer's Tools of the Trade
8. Standards of Review: The First Line of Defense
9. Protecting the Record for Appeal: Advice for the Trial Prosecutor
10. Professional Responsibility on Appeal
11. How Appealing is Your Case? Eight Considerations That May Influence a Decision to Appeal
12. Successful Appellate Oral Advocacy
13. Taking Advantage of Oral Argument
14. Decision Making: Conferencing of Cases
15. Judicial Conferencing in Appellate Courts
16. Fielding Difficult Questions From the Bench
17. Inspirational Works for the Appellate Prosecutor

At 219 total pages in the book, these chapters are necessarily short.  Some chapters aren't that helpful and some authors are better writers than others.

Nonetheless, this book is recommended.  If you bring criminal direct appeals, the book provides insight into how the State may approach your case.  That was the reason I read the book before attending NLADA's Appellate Defender Training in May 2025 - the contrast in approaches is very useful for understanding criminal appeals.

The recommendations on how to draft a statement of facts (pp. 33-40) illustrate this point.  The author gives several great examples of how to draft these statements in a way highly favorable to the State.  The key is to make judges want to rule for you, that "the judges' emotional sympathies and feelings of fair play make them hope they are able to rule for you." (p. 34)  The State can relay the facts "in the light most favorable to the jury's verdict" and should do so by telling a story, not summarizing witness testimony. (pp. 34-35)

Similarly, at various points the book identifies techniques used by defense counsel and how the State should combat them.  We are told that witness by witness recitation of the facts "is a defense technique, designed to suck the life out of the story of the case." (p. 35)  State's counsel should anticipate defense counsel's "attempt to transmute discretionary questions into mixed questions of law and fact that are reviewed de novo." (p. 125)  And do not allow gaps of silence in the record - such as off-the-record discussions - or "the defense bar [will] fill such silences with inflammatory speculation which proves disturbing to the appellate courts...." (p. 133)

The book is also a good primer or review of techniques and tips for any appellate practice.  For example, various authors recommend telling a story when relating the facts, as opposed to proceeding in a chronological fashion or summarizing testimony witness by witness. (pp. 19, 35, 69, 70)  Chapters 2, 5, 6, 8, 12, 13, and 16 were great refreshers.

If you are trying to understand criminal appeals better, or simply want a primer or review of appellate practice, this book is worth your time and attention.  I have several pages of notes to show for my effort and will incorporate these into my practice.

Thanks for reading.

Noteworthy (short) articles about appeals - and a couple of other items

 

The latest issue of "The Arkansas Lawyer," volume 60, number 2 (Spring 2025), contains several short articles about appellate practice that are well worth your time and attention.  These were written by current appellate judges and current or former court staff.

If you pair Judge Cindy Thyer's article on issue preservation with the article by Judge Brandon Harrison and staff attorney Amber Davis, you will enjoy a useful review of preservation and finality, two areas that cannot be ignored on appeal.  These two articles are outstanding.

More general overviews are provided by Justice Rhonda Wood and former Court of Appeals law clerk Martha Ayres.  These articles contain useful brief writing and other practice tips.  They also provide insight into some of the operating procedures of our appellate courts.

Congratulations to the authors and editors for a great set of useful articles.

On a couple of unrelated items, no appellate decisions were handed down the week of June 8, 2025.  But I am still working towards a "part two" for Court of Appeals decisions the week of June 1, 2025.

And at the Arkansas Bar Association's just concluded 127th Annual Meeting, Andy Taylor presented an informative session on final orders and issues related to record deadlines.  Many thanks to Mr. Taylor for the great tips and advice.

Opinion highlights for the week of June 1, 2025 - part one

A clear sign summer break is near: the Arkansas Court of Appeals issued five and a half pages worth of signed opinions this week.  I have not read them all yet, so this post is limited to Arkansas Supreme Court decisions.  But there is at least one Court of Appeals decision that really needs notice - I may get to these opinions during break, but they will be reviewed.

On to the Supreme Court.  There are five opinions on the docket, one dissent from denial of a petition for review, some per curiam opinions addressing committee appointments, and a couple of items dipping the court's toes into artificial intelligence.  We'll look at a couple of those opinions, and note the AI related items.

Lovett v. State, 2025 Ark. 100, applied some familiar rules: you can't raise arguments for the first time on appeal, you must obtain a ruling at trial to preserve an issue for appeal, and you are bound to the nature and scope of the arguments made at trial.  Fairly standard stuff.

What makes the decision interesting is the concurrence, which starts strong: "Our preservation rules shouldn't be a trap for litigants. Yet that's how the majority treats them, foreclosing appellate review whenever a defendant hasn't uttered certain magic phrases." Id. at 5.  The concurrence takes the majority to task for elevating form over substance, and suggests that the court "focus instead on substance and ask whether, in context, an objection fairly encompassed the argument made on appeal." Id. at 6.  Applying that standard, the concurrence believed at least one argument was preserved for review.

The concurrence also believes there was a ruling on this argument: "The record confirms that the circuit judge shook her head in direct response to Lovett's request for a curative instruction.  That's sufficient; there's no requirement that a circuit court verbalize its ruling." Id. at 7.  Lovett shouldn't be penalized "for the circuit judge's decision to convey her ruling with a gesture instead of words." Id.

Unfortunately, no other justice joined the concurrence.

Sanders v. Arkansas Board of Corrections, 2025 Ark. 102, addresses an ongoing dispute between the Governor and the Board over the employment of a Secretary of the Department of Corrections and the enforcement of certain legislation.  The Board obtained an injunction halting enforcement of the legislation.  The Attorney General appealed.  After this interlocutory appeal was lodged in the Supreme Court, the appellants moved the court to disqualify the Board's counsel.  This motion was considered with the rest of the case.

For our purposes, the interesting point is the basis upon which the court dismissed this motion to disqualify.  Generally, an interlocutory appeal only brings up for review the decision being appealed.  Here, the interlocutory appeal was from the granting of an injunction.  "Accordingly, because the motion to disqualify is outside the scope of our interlocutory review of the order granting the preliminary injunction, we dismiss the motion to disqualify." Id. at 7.

Finally, the two AI items deserve note.  The court published a proposed new Administrative Order 25, which includes a discussion about mixing confidential data with AI.  The court also published a proposed change to the Rules of Professional Conduct relating to attorney use of AI and professional responsibility.  The court is currently accepting comments on both of these proposals.

Thanks for reading!

A new edition of The Bluebook

 

A new edition of The Bluebook is now available, the twenty-second.  If you are interested in a copy, an internet search will turn up a number of vendors.  I ordered a copy from The Lawbook Exchange, here:

The Bluebook, 22nd Edition: Now Available for Immediate Shipment!