THERE IS NO magic formula that, if followed, will guarantee that your client’s case will be accepted upon appeal. What is certain, though, is that if you harbor any notion of getting a case heard by an appellate court, you must present something more than bald assertions that the trial court erred.

From the vantage point of an appellate court, it is generally presumed that the proceeding in a lower court came to a correct result. In order to show why the case merits appellate review, you must present a valid argument that this is not so. Typically, the vehicle for doing so is the notice of appeal. This article aims to provide helpful hints on preparing such a document when filing an appeal in New Hampshire.

Before You Prepare A Notice Of Appeal . . .

Before preparing a notice of appeal and adding to the ever-increasing caseload of the New Hampshire Supreme Court, you should seriously evaluate the case and your client’s chances of success upon appeal. Unless something more than harmless error or a clear error of law occurred, the likelihood of a successful appeal must be characterized as doubtful. This is true in any appellate court. Therefore, it is critical that you take a step back and review the case as objectively as humanly possible. Far too often, notices of appeal are nothing more than emotional rants about the alleged "horrible injustices" rendered by the court. This is simply not constructive and does nothing to improve your chances of being heard by any appellate court. Appeals that resemble such rants are much less effective than those that concisely and civilly present genuine legal issues. Although this seems obvious, it is shocking how many skilled, seasoned attorneys get lost in their emotions when it comes time to craft a notice of appeal.

After the lawyer takes a good look at the case, the client should be told about the realistic chance of success upon appeal. This requires you to do some homework before filing a notice of appeal. How has the court ruled in similar cases? Is there a recent trend towards/away from your client’s legal position? What role does equity play in the court’s jurisprudence on the issue(s)? Are there unique policy concerns that may pique the court’s interest? What does the client stand to gain? Do you intend to use the appeals process as leverage in post-trial settlement negotiations? Is that appropriate or wise? Appeals can be costly. Ultimately, it is the client’s choice whether to pursue an appeal. It is your job, as counsel, to make sure your client makes a well-informed decision.

Drafting the Notice of Appeal

I offer the following suggestions to assist counsel in performing the arduous task of drafting a notice of appeal. Please note that this article assumes that the appeal is of a lower court’s decision on the merits. See Sup. Ct. R. 7.

Under Supreme Court Rule 7(2), a timely notice of appeal must be filed within 30 days of the date on the clerk’s written notice of the decision on the merits. A decision on the merits "includes decisions on motions made after an order, verdict, opinion, decree or sentence." Sup. Ct. R. 7(1). Counsel should review Rule 7 and understand the effect particular post-trial motions have upon the issue of timeliness. See id.

It is my opinion that 30 days is barely an adequate amount of time to properly prepare a notice of appeal. I believe that, if provided with more time, counsel could more fully review the record and craft a better notice of appeal. Of course, this assumes that counsel would actually use the time wisely and not simply push back the deadline for filing. Regardless, drafting a notice of appeal, if done right, takes time. I simply caution you not to wait until the last minute to prepare a notice of appeal. As in any endeavor, last-minute efforts often appear shoddy and unprofessional. If your case involves a clear-cut and unmistakable error, does it really matter that the notice of appeal is weak? Probably not. But, most cases are not so cut and dry. Take the time to do it right.

The critical question is what exactly to appeal. Because of the limited time available to fully review the record, it is not uncommon for the court to see a notice of appeal that raises many questions. This shotgun approach may be necessary in some cases, but certain basics should be followed. For example, often two or three questions allege the same error, but in a slightly different form. Don’t repeat yourself – eliminate the repetitive questions. Each question should be clear and concise.

When dealing with multiple evidentiary issues, I suggest presenting one general question, then listing each particular error as a sub-point. This avoids the appearance of repetition. It is also an effective way of presenting the trial court’s errors in the aggregate. Thus, taken as a whole, the errors are perceived as more than harmless and doubt is cast upon the presumption that the proceeding in the lower court was correct. This approach is essentially required for questions regarding the legal sufficiency of the evidence. ("If a ground for appeal is the legal sufficiency of the evidence, the question in the notice of appeal form raising that ground shall contain a succinct statement of why the evidence is alleged to be insufficient as a matter of law.") See Sup. Ct. R. 7(7)

Counsel can always raise multiple issues in the notice of appeal and brief only those that truly hold water, thereby waiving those questions not briefed. However, this should not be considered a license to throw everything but the kitchen sink into your notice of appeal. A general observation: The more garbage thrown into a notice of appeal, the more it stinks. The presumption that the lower court proceeding was correct becomes a sweet aroma in comparison.

If you have a chance to review the record in detail, it may be more appropriate to raise fewer questions upon appeal. I call this the sniper approach. This is particularly useful and effective when the case turned upon the interpretation of a statute or some other clear issue of law. In such circumstances, the issue(s) of law can be succinctly presented in one or two questions on appeal.

The questions you present should be phrased in a manner that clearly demonstrates your position on the issue. Indeed, the "questions presented" section of the notice of appeal form should be viewed as an opportunity to tell the court what happened in the lower court and why it was in error. Thus, you should try to craft questions that present the issues while aggressively advocating on your client’s behalf.

The best resource in filing a notice of appeal is, hands down, the court’s staff. They are incredibly knowledgeable and helpful. However, I caution counsel to be kind and courteous. A checklist is available from the Clerk’s Office to assist in completing a notice of appeal. I recommend following the checklist – it is a great resource. A copy of the notice of appeal form can be found in New Hampshire Court Rules Annotated at 195 (Lexis 2001-2002), but counsel should get a copy from the court to ensure that the form he or she has is up-to-date.

Aside from logistical errors, counsel often fails to provide the court all the documents necessary for it "to evaluate the specific questions raise on appeal and to determine whether the appeal is timely filed." Sup. Ct. R. 7(6). Particularly, counsel often fails to provide the non-appealing party’s responsive pleadings. Presenting "half of the story" is not helpful and may be viewed as an attempt to hide the ball. As for the rest of the form, follow the instructions and, when in doubt, contact the court for clarification.

Note that the court is considering revising the notice of appeal form. With this in mind, my suggestions and observations in this article are intended to be general and, hopefully, applicable to any notice of appeal form. It is my understanding that the major change in the proposed revised notice of appeal is to the "Issues on Appeal" (questions presented) section.

Along with the "questions presented" section, the other central piece of the notice of appeal form is the call for counsel to provide "a direct and concise statement of the reasons why a substantial basis exists for a difference of opinion on the questions and why the acceptance of the appeal would protect a party from substantial and irreparable injury, or present the opportunity to decide, modify, or clarify an issue of general importance in the administration of justice." New Hampshire Court Rules Annotated at 195. Remember, you must overcome the presumption that the lower court proceeding reached the right result. This portion of the appeal notice directly addresses this issue.

Further, I view this portion of the notice as a chance to explain why this case, your client’s case, is necessary to the progress of the common law. I do not mean "necessary" in the sense that the case must rise to the level of groundbreaking precedent. In my view, common law strives to remain static, but when it does move forward, it generally does so at a snail’s pace. Therefore, the necessity of hearing your client’s case upon appeal should fall somewhere between preserving the status quo and slightly modifying it. The easy argument is for hearing appeal of a decision that squarely falls outside the status quo and, therefore, should be corrected to preserve the integrity of the well-established rule of law at issue. The more difficult case involves convincing the court that an improvement must be made to the status quo. This situation calls for counsel to discuss the inevitable repercussions if the rule of law remains perfectly static.

Counsel should be aware of the interplay between law and equity in common law courts. This interplay is part of the delicate balancing act common law courts perform in rendering sound judicial opinions. Along with notions of stare decisis, whether a lower court reached the "right" result may bend the ear of an appellate jurist or two. I believe that mid-level appellate courts often filter out the equities of the case, leaving only well defined legal issues for the highest court. In jurisdictions without such a "filter," I contend that fairness may play a greater role in a court’s decision to accept an appeal.

Regardless of the equities of a particular case, I caution you not to allow issues of "fairness" to cloud an explanation of the legal reasons why the case should be heard. As stated previously, harping upon the "outrageous" proceeding in a lower court will likely come across as an emotional rant and will lack persuasive power. I suggest reviewing your questions presented before drafting this section. Is the issue one of first impression? Why? What have other jurisdictions done? Does the decision conflict with prior case law? How?

An effective notice of appeal does not need to be the equivalent of a Learned Hand diatribe, but it must play to the philosophical nature of appellate procedures and to the particular court in which the appeal is filed. It should be well organized and pose questions for review as succinctly and persuasively as possible. Because it is the document upon which the court will decide whether to accept your client’s case, counsel should take the time to draft a solid notice of appeal.

Eric Cioffi is a senior law clerk at the New Hampshire Supreme Court. Prior to his clerkship, he was a litigation associate at McLane, Graf, Raulerson & Middleton.

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