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Birmingham Bar Association

Appeals Convincing the Court to grant a mandamus petition or PPA is hard enough without crippling your own efforts. Make sure you provide everything the Court needs to understand your petition. If you are seeking mandamus relief, make sure it’s an issue the Court will review through such a petition: whether the litigation is brought in the correct court (e.g., subject-matter jurisdiction or venue); whether the correct parties are involved (e.g., immunity or personal jurisdiction); certain discovery rulings (e.g., privileged matters or discovery sanctions so severe that a party’s action or defense is eviscerated); or in certain other situations where there is a compelling reason not to wait for an appeal (e.g., abatement or indefinite stay of an action). For a PPA, make sure you jump through all of the technical hoops required by Rule 5, Ala. R. App. P. Also, ensure the petition demonstrates you are bringing a question of controlling law (not fact), the answer to which will help resolve the litigation swiftly, and that the question is one which would be proper to bring to the Supreme Court on a direct appeal (i.e., nothing within the exclusive jurisdiction of the Court of Criminal Appeals or the Court of Civil Appeals). Hide the Ball- Certiorari Style The Court receives a surprising number of certiorari petitions containing little factual support. By rule, the Supreme Court does not have access to the record on appeal (which is actually strictly enforced). So the Court can only review those facts you provide. There are multiple ways to bring the necessary facts to the Court’s attention; you just have to pick one! If you don’t give the Court enough facts to understand how the court of appeals erred, your certiorari petition is doomed to fail. Also remember to clearly state the ground on which you are seeking review. If you don’t, the Court will likely be forced to deny your petition. And don’t think you can attach anything you want to your petition. Rule 39(d), Ala. R. App. P., lays out what should be attached, and only those items are allowed to be attached (so don’t include a copy of your application for rehearing you filed with the court of appeals or your manifesto on the injustices your client suffered at the hands of the court system, or you will get a deficiency notice). Ignore the Appellate Deadlines The best, surest way to sink your ship is to ignore deadlines. Certiorari petitions must be filed within 14 days and, but for direct appeal death penalty cases, there is nothing in the world that will extend that deadline. Notices of appeal must generally be brought within 14 or 42 days and, again, a late appeal cannot be saved. A mandamus petition must be brought in the time allowed for a notice of appeal (generally 42 days), but can be filed late only if a statement of good cause is included in the petition. A PPA must be file with the Supreme Court within 14 days after the trial court certifies the question of law to be reviewed, which must have occurred within 28 days of the order compelling the interlocutory appeal. This advice applies to briefing schedules, too. Rule 31, Ala. R. App. P., lays out the deadlines. An appellant’s brief is due within 28 days of the date the trial court clerk certifies the record as complete (not when you receive the record or when your assistant tells you the record has arrived). If you can’t make a briefing deadline, file a motion asking for an extension, but do it before the brief is due. If you totally flub and miss the deadline before you can file anything, get your brief filed as quickly as possible and move the Court to accept your brief even though it is untimely. Explain why the brief was late, but be honest. The Court doesn’t like to punish a client because an attorney miscalculated when a brief is due, but things get stickier when an attorney is caught in a lie about why a brief is late. And the absolute worst lie you can tell is falsely blaming the problem on the electronic filing system. We know when it is working and when it ain’t. Conclusion Appeals are hard work and can be really expensive. Make sure you don’t commit one of these silly mistakes and throw away all of that time and money. There are much better ways to waste these precious resources, such as a trip to Vegas or investing in your cousin’s sushi and nachos restaurant idea. If you ever have any questions, don’t be bashful about calling the Clerk’s Office for some help. We answer questions for attorneys all the time, to help attorneys avoid any major procedural pitfalls. We can be reached at (334) 229-0700. And if you call after we’ve had our coffee, sometimes we can be pretty friendly, too! G Brad Medaris, a graduate of Jacksonville State University and the University of Alabama School of Law, serves the Supreme Court of Alabama as a Central Staff Attorney within the Clerk's Office. He continues to hold out hope that he will stumble into his dream job as a trust fund kid. Birmingham Bar Bulletin/ Winter 2017 21


Birmingham Bar Association
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