How to Write an Appeal Without Looking Silly

Besides strict compliance with all appellate rules, lawyers must be in strict compliance with common sense.

I know of no better way to immediately eliminate your chances on appeal than to assert abuse of discretion unless you have a situation that is shocking and stupid. Everything else comes under the heading of reversible error.

 

Abuse of discretion means that the judge had discretion and went ultra vires — beyond the bounds of his/her authority. Abuse of discretion is a part of the larger set of reversible error.

*
Reversible error means that the judge applied the law wrong and/or came to factual conclusions for which there was no admissible evidence.
*
Those are two different sets of tracks. But they overlap.
*
Appeals based upon abuse of discretion require that the judge had discretion but abused it. It implies that the judge had discretion but then went outside the bounds of propriety or came to a conclusion that shocks the appellate court. If you allege that the judge had discretion then the only remaining question is whether there was abuse of the discretion. Being wrong is not abuse of discretion. But it still might be reversible error.
*
If the judge lacked jurisdiction, it was not abuse of discretion. It was reversible error. Absence of jurisdiction means that the judge lacked any discretion and was required by law to simply enter an order closing the case. If a party raises a defense that they have no standing to invoke, the court lacks jurisdiction over the subject matter. If the court instead rules on the defense it is reversible error. It is not abuse of discretion.
*
Abuse of discretion is a technical term of art used in appellate procedure. It does not mean anything in a more general sense of the words implying a wrong decision.
*

By asserting abuse of discretion you are declaring that the judge had discretion. That is an implied waiver of your jurisdictional argument. At best it presents a conflict requiring the appellate court to reconcile your two different assertions — discretion and no jurisdiction. Those two are mutually exclusive.

 

Leave a Reply

%d bloggers like this: