Top Ten Things to Know About Appeals
1. IT’S ALL ABOUT THE RECORD.
The first question I’m typically asked by a prospective appellate client is “How can we tell the appellate court about all the emails from my ex-husband (credit card receipts, nasty texts) my lawyer refused to present, despite my pleas?” The answer is, we can’t. An appeal is based on the record presented to the trial court. Any evidence that is not in … Read More
What Exactly is That Rule About Unpublished Decisions and Can’t We Cite Them Now?
For writers of any legal briefs, there is hardly anything more frustrating than finally finding a case on point, in our jurisdiction, with a “correct” holding to support our argument, but unpublished. More than 85% of the decisions in the 9th Circuit are unpublished.[i] For the fiscal year 2017, in Division One of the Arizona Court of Appeals, a total of 621 civil cases … Read More
15 Jaburg Wilk Attorneys Named to 2019 Best Lawyers® List
PHOENIX, Ariz. (08/15/2018) – Jaburg Wilk is pleased to announce that 15 lawyers have been included in the 2019 Edition of The Best Lawyers in America. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence.
"Best Lawyers was founded in 1981 with the purpose of highlighting the extraordinary … Read More
Federal Appellate Rule Changes
The amendments to the Federal Rules of Appellate Procedure, effective December 1, 2016, arise, for the most part, out of changes in technology. Some of the amendments refine prior Rules that, while taking into account technology, were nevertheless skeptical of its efficacy and reliability.
Service by Electronic Means
For example, it is now acknowledged that service by electronic means … Read More
Sanctions and the Terrible, Horrible, No Good, Very Bad Appeal
This may not be a book my new grandson Felix will soon be reading, but it does raise a legitimate question: When you really, truly, believe a federal appeal is frivolous, and not just garden variety, I know you’re going to lose, please don’t make me spend my client’s money defending, but truly a terrible, horrible, no good, very bad appeal, can you obtain sanctions under Federal Rule 11 … Read More
Arizona Court of Appeals Recognizes Right of Publicity While Protecting Free Speech in Precedent Setting Case
For the first time ever, an Arizona state court has recognized that individuals enjoy a right of publicity that protects them from the unauthorized use of their name or likeness for commercial or trade purposes. In its April 24, 2014 decision in Reynolds v. Reynolds, the Arizona Court of Appeals recognized the right of publicity and determined that right survives the individual's death and may be brought by … Read More
Don’t Bogart That Medical Marijuana, My Caregiver
"The medical marijuana is actually for the caregiver," my dad explained. I did not know that. "Everyone knows that," he assured me, having discovered as much in his support group. My mother was dying of lung cancer, and in the full throes of cancer pain, helped very little by Vicodin, Oxycontin, or even morphine. My dad had been awake most of the night for weeks, caring for his wife of 51 years. Pain has a sound, … Read More
What is an Appeal and Why Do I Need an Appeals Lawyer?
By Kathi M. Sandweiss
An appeal is a request for a higher court to review a lower court's decision. An appeals lawyer handles cases on appeal when a party loses or is unhappy with some part of the decision made by the lower court. The appeals court reviews the record made in the trial court. Nothing new can be added to the record; this is not the time to add new facts or evidence. The appeal is not a trial … Read More
Contractual Attorney Fee Awards May be Contested
In a recent decision, the Arizona Court of Appeals, Division One, issued a ruling moving the burden of proving reasonableness of attorneys' fees sought by a successful party to the applicant. The underlying contract contained a fee shifting provision.
In Geller v. Lesk, P.3d 2012, 2012 WL 4364241 (App. Sept. 25, 2012), the Court of Appeals held that even where there is a contractual fee … Read More
Arizona Court of Appeals Decision Adds Confusion to the Interpretation of the Anti-Deficiency Statutes
In a decision issued on December 27, 2011, the Arizona Court of Appeals held that Arizona's anti-deficiency statute applies to debtors who purchase vacant land with the intent to reside on the property upon completion of construction of a home even if they do not complete construction or actually occupy the property.
In M&I Marshall & Ilsley Bank v. Mueller, 1 CA-CV 10-0804, the debtors purchased a … Read More