Supreme Court & Appellate

It decides, first, whether to appeal, which means weighing the standard of review against the likely error and the cost of a bond to hold off the judgment creditor. It then selects the questions, writes the briefs within the court's word limits (13,000 words for a principal brief under the federal rules, with some circuits setting their own number) and prepares the argument through moots. After decision it handles rehearing, en banc petitions and, in the rare case that warrants it, certiorari. It also sits with trial teams before verdict, because the questions worth appealing have to be preserved while the record is still open.

Before the jury is instructed, if the budget allows. A sufficiency challenge is lost unless a Rule 50(a) motion was made before the case went to the jury, an excluded exhibit is generally unreviewable without an offer of proof, and an instruction cannot be attacked on appeal unless the objection and its grounds were stated when the court invited them. Appellate counsel at trial keeps that list and reads the proposed verdict form for the question the appeal will turn on. After judgment, call within the week: the 30-day clock, the post-judgment motions that reset it and the stay of enforcement have to be decided together.

Yes, on the strategy, the petition and the briefing, in coordination with counsel admitted to the Court's bar where its rules require it. A petition for certiorari is due 90 days after the judgment below and is granted in a small fraction of cases, most often where the circuits or the state high courts have split on the question. A brief in opposition, cert-stage amicus support from trade groups and, when the Court asks for them, the views of the Solicitor General all move the odds before the Justices vote. One partner carries the substance of the case into that team and stays accountable for it.

A trial decides what happened; an appeal decides whether the judgment can stand on the record as made. No new evidence comes in and no witness is heard, and each ruling is reviewed under its own standard: de novo for law, abuse of discretion for evidentiary and procedural calls, clear error for a judge's findings of fact. Two asymmetries follow. The appellee may defend the judgment on any ground the record supports, including one the trial judge rejected, while the appellant must show both error and prejudice, because under 28 U.S.C. § 2111 a harmless error is disregarded. The audience is three judges who have read the briefs and will interrupt.

The standard of review is the lens through which an appellate court examines what happened below, from de novo review of pure legal questions to the far more deferential review applied to a trial court's factual findings or discretionary rulings. It often decides the appeal before the merits are reached, because it sets how much deference the lower decision is owed. Identifying and arguing the right standard for each issue is among the first and most consequential steps in any appeal.

One partner frames the questions, writes the briefs and argues them, so the theory does not change hands between the draft and the lectern, and the trial team stays on the matter for the record. The client's decisions come early: whether to post a bond or negotiate a stay, whether to cross-appeal within the 14-day window, and whether to use the court's mediation program, which every federal circuit runs and which settles a share of civil appeals before briefing is complete. Where a court requires its own admission, we coordinate with counsel admitted there and keep one partner accountable throughout.