Abraham Lincoln practiced law in Illinois before becoming president. In his practice he experienced many of the same frustrations you and I face when dealing with the courts. Lincoln was once heard to complain that some judgrs "would hang a man for blowing his nose in the street, but ... would quash the indictment if it failed to specify what hand he blew it with." There are two rules that the appeals court frequently relies on which have sometimes been used to create the sort of silliness that Lincoln here laments. The first is the ore tenus rule. This rule suggests that the appeals court should be slow to second guess the trial court's opinion of the facts because the trial judge was there when the testimony was offered and could look the witnesses over and judge their credibility. This reasoning is sound but in some cases has been taken to extremes. I have seen cases where this rule has been used to simply ignore evidence and facts altogether. I remember one case where a mother removed her children from their home (that was paid for by the father) and moved 1000 miles to live in a tent, then a barn so that mother could pursue a new romance. Though these facts were undisputed at the trial court they were ignored on appeal and deleted from any mention by the court. I have also seen ore tenus stretched in other cases to say a question of fact could be created by a party speculating on events that could have, but in fact never did occur. These silly outcomes are most common in divorce and family court cases where there is no jury. I believe that a simple cure would be to have these cases recorded with video equipment. Then the recording could be sent up on appeal to make sure the witnesses can be analized and ore tenus retired. Instant replay was intoduced into football because getting it right was prioritized over other concerns. Instant replay needs to be introduced into our court system for the same reason. Until then watch out for ore tenus on your appeal.
Another rule that is sometimes abused on appeal is ARAP 28 which requires parties to support all of their arguments with supporting law and facts. This is a good idea as well. The appeals court should not be required to do your research for you. However, there have been those cases that are well reasoned and supported yet still thrashed by a stretching of this rule. This rule when taken to the extreme is used to imply that every word of a brief must be footnoted with a dictionary definition. While Bill Clinton may have argued that he could not answer a question until the word "is" was defined for him, the rest of us reguire no such absurdity. This rule has elsewhere been used to prevent consideration of new arguments. If a new argument is made that has never been made before whwre do you cite to for an original thought? And still worse, this rule has been used disingenuously in the hopes that no one will go back and read the well argued brief. After all, the courts publish their own opinions not the lawyers. To find that you will need to do some digging.
These two rules, though well meaning, present special challenges on appeal. Any attorney or litigant on appeal needs to be as careful as possible when navigating these rules.
Another rule that is sometimes abused on appeal is ARAP 28 which requires parties to support all of their arguments with supporting law and facts. This is a good idea as well. The appeals court should not be required to do your research for you. However, there have been those cases that are well reasoned and supported yet still thrashed by a stretching of this rule. This rule when taken to the extreme is used to imply that every word of a brief must be footnoted with a dictionary definition. While Bill Clinton may have argued that he could not answer a question until the word "is" was defined for him, the rest of us reguire no such absurdity. This rule has elsewhere been used to prevent consideration of new arguments. If a new argument is made that has never been made before whwre do you cite to for an original thought? And still worse, this rule has been used disingenuously in the hopes that no one will go back and read the well argued brief. After all, the courts publish their own opinions not the lawyers. To find that you will need to do some digging.
These two rules, though well meaning, present special challenges on appeal. Any attorney or litigant on appeal needs to be as careful as possible when navigating these rules.
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