Class 2 – Introduction to Appellate Practice in Missouri

The Nature of Appellate Review

You already know that the appellate process does not provide plenary or de novo review of the entire trial. Only those alleged errors that have been properly preserved for review will be heard by the court. Preserved errors may be reviewed in a variety of different ways, depending on the procedural posture of the case and the type of error involved.

An advocate's first task in preparing an appellate case is to carefully review the record in order to identify potential errors that may be raised on appeal. Counsel must then insure that a proper objection was made to preserve the error for review. If not, the alleged error may be unreviewable or subject to a "plain error" or "miscarriage of justice" standard. See Mo. Sup. Ct. Rule 84.13(a) ("allegations of error not presented to or expressly decided by the trial court shall not be considered" on appeal of civil cases); Rule 29.11 (requirement that allegations be presented to the trial judge in criminal cases); see also Rule 84.13(c) and 29.12(b) (errors not preserved may only be considered to avoid manifest injustice). 

In Moot Court, the issues will be generally identified for you, and preservation of the issues below can normally be assumed. The first important concern in most moot court problems generally relates to identifying the appropriate standard of review for your issue.  Your research will generally begin here as statutes and case law will instruct you on the correct standard.

The appellate court must analyze issues differently depending on the type of alleged error. Where the alleged error involves a pure question of law, review is normally de novo. In other words, the appellate court determines what the law is, if the trial court was wrong, and if so, whether that error likely had a material effect on the outcome. See Mo. Sup. Ct. Rules 84.13(b); 29.12(a). 

In many cases, however, the alleged error involves admission or exclusion of evidence, seating or striking a juror, or similar discretionary decisions that involve assessment of demeanor or decisions in the context of an ongoing trial. Here, the appellate court does not substitute its judgment for that of the trial court. It does not ask what decision it would have made if it were the trial judge. Rather, the appellate court asks whether the trial judge abused his or her discretion: was the trial court's ruling "clearly against the logic of the circumstances . . . and so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration?" State ex rel. Webster v. Lehndorff Geneva, Inc., 744 S.W.2d 801, 804 (Mo. banc 1988).  "[I]f reasonable [minds] can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion," and reversal is not appropriate. Id.

Absent reversible error in the trial itself, appellate courts may disturb a verdict in few situations. In federal jury cases, where no substantial evidence exists to support the verdict or where no rational trier of fact could have found the elements of the crime beyond a reasonable doubt, the appellate court may set the jury's verdict aside. Jackson v. Virginia, 443 U.S. 307, 319 (1979).  In Missouri, a jury verdict will not be overturned unless there is "a complete absence of probative facts" supporting it. Minden v. Otis Elevator Co., 793 S.W.2d 461, 462 (Mo. App. 1990).  Appellate courts in Missouri do not overturn verdicts as against the weight of the evidence; that decision is for the trial court. Veach v. Chicago and North Western Trans Co., 719 S.W.2d 767, 769 (Mo. banc 1986); see also Mo. Sup. Ct. R. 78.02.

Even in bench trials, deference to the trial judge is appropriate. In federal cases, a trial judge's factual findings are only set aside if "clearly erroneous." Fed. R. Civ. P. 52(a).   In Missouri, a decree or judgment of the trial court can only be overturned if there is "no substantial evidence to support it" or it "is against the weight of the evidence." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) (interpreting Mo. Sup. Ct. Rule 73.01). 

The procedural posture of a case may also impact the scope of review. For example, review of a preliminary injunction is different than review of a final injunction. Counsel must always be aware of the applicable standard in order to be effective and avoid embarrassment.

Standards of Review

The attached chart, prepared by the Legal Writing Program, can be helpful if you are a visual person. This chart is set up using general or federal law. As noted above, take the material above and the chart and make sure you understand what the standard of review is in Missouri for each type of alleged error (do not worry about administrative agencies for now).

Points Relied On

In Appellate Advocacy II, students are required to submit "Points Relied On" (including authorities) and a Summary of Argument.  "Points Relied On" are required in all briefs filed in Missouri appellate courts.  The "Points" define and limit the questions presented for review.  Any point not sufficiently stated in the "Points Relied On" may not be considered by the appellate court.

Note that, in actual Missouri procedure, only Appellants are required to file PRO’s, but in Moot Court, both sides file Points. Many Respondents in fact do provide Points in real cases.

The requirements for Points Relied On are set out in Missouri Supreme Court Rule 84.04(d) (emphasis added). 

MISSOURI SUPREME COURT RULE 84.04

84.04 BRIEFS - CONTENTS 

(a) Contents.  The brief for appellant shall contain:

                .  .  . 

                (4) The points relied on;

                (5) An argument, which shall substantially follow the order of the points relied on  .  .  .

*   *   *

(d) Points Relied On.

                (1)  Where the appellate court reviews the decision of a trial court, each point shall:

                (A)  identify the trial court ruling or action that the appellant challenges;

                (B) state concisely the legal reasons for the appellant’s claim of reversible error; and

                (C)  explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.

The point shall be in substantially the following form: “The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error].”

* * *

                (4)  Abstract statements of law, standing alone, do not comply with this rule. Any reference to the record shall be limited to the ultimate facts necessary to inform the appellate court and the other parties of the issues.  Detailed evidentiary facts shall not be included.

                (5)  Immediately following each "Point Relied On," the appellant . . . shall include a list of cases, not to exceed four, and the constitutional, statutory, and regulatory provisions or other authority upon which that party principally relies.

                (e)  Argument.  The argument shall substantially follow the order of “Points Relied On.”  The point relied on shall be restated at the beginning of the section of the argument discussing that point.  The argument shall be limited to those errors included in the “Points Relied On.” The argument shall also include a concise statement of the applicable standard of review for each claim of error.  If a point relates to the giving, refusal or modification of an instruction, such instruction shall be set forth in full in the argument portion of the brief. Long quotations from cases and long lists of citations should not be included.

The following abstract, written by a former Chief Justice of the Missouri Supreme Court, gives you some insight into how the rule works in practice (although written before the Rule itself was clarified).

THE BRIEFING OF AN APPEAL
Charles B.  Blackmar

1.  Points Relied On

Almost all court rules call for some sort of statement of "points," or "propositions," or "questions presented."

The Rules of the Supreme Court of the United States call for "questions presented," as follows:

(a)  The questions presented for review, expressed in terms and circumstances of the case but without unnecessary detail.  The statement of the questions should be short and concise and should not be argumentative or repetitious.  The statement of a question presented will be deemed to comprise every subsidiary question fairly included therein.  Only the questions set forth in the petition or fairly included therein will be considered by the Court.

The Missouri rules call for the following:

The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous, with citations of authorities thereunder.  If more than three authorities are cited in support of a point made, the three authorities principally relied on shall be cited first.  All authorities discussed in the argument shall be cited under the "Points Relied On."  Long lists of citations should not be included.

Setting out only abstract statements of law without showing how they are related to any action or ruling of the court is not a compliance with this Rule.

So the two sets of rules have differing requirements to serve the same basic purpose.  What is suitable in one forum will not be appropriate for another.  The difference might be illustrated by examples.  The following would be appropriate under the Supreme Court rule:

Whether the defendant physician, served under a "longarm" statute (citation), waived the right to challenge jurisdiction over the person and entered a general appearance by obtaining an unconditional extension of time for responding to the plaintiff's complaint.

                The same issue might be presented in the Missouri form, as follows:

The trial court erred in sustaining the defendant physician's motion to quash service, for the reason that the defendant, prior to filing this motion, obtained an unconditional extension for time to respond to the plaintiff's petition, and thereby consented to the court’s jurisdiction over the person and effected a general appearance.

                The "points" section of the brief is extremely important.  This is the first thing I read in a brief, because, if the points are properly phrased, they give me an overall view of the issues.  There has been a certain amount of tension between courts and lawyers over the framing of points.  The judges have felt that some lawyers simply did not comply with the rules.  Several years ago courts began dismissing appeals, or refusing to consider some claims of error, because the points were faulty.  Then for a time the courts' legal assistants would scrutinize briefs, and the court would order counsel to reframe points which did not comply with the governing rules.  I would hesitate to take drastic action against a lawyer simply because the points were not well phrased, but you will make it easier for the judges if you adhere to the rules.

Some lawyers, perhaps in an attempt to avoid any claim of violation of the rules, will file briefs in which a single point covers half a page.  A point written in this manner is not helpful to the court.  The well phrased point may be succinct, but nevertheless in full compliance with the rules.  The points give you the opportunity to summarize your argument.  Be sure to take advantage of this opportunity.

Take full advantage also of the opportunity to list your best authorities, not more than three, at the beginning of the list of authorities which comes after each point.  The rule is very clear, but some counsel overlook it.  One danger is that a judge reading the brief may look at the authorities first cited before argument, and, if they are really of secondary importance, may conclude that nothing of substance has been cited.