The Importance of Being… Equitable

It isn’t fair!  Every parent has heard that complaint from their children.  And while after we’re “all grown up” we might not use those exact words, “fairness” is still at the heart of the law.

When a case is appealed, the person appealing — the Appellant — must compile what is known as the “Record on Appeal.”  The Record is just a compilation of the documents which the reviewing court will use in deciding whether or not to change the trial court’s decision.  In criminal cases, the record includes indictments, warrants, and verdicts.  In a divorce or equitable distribution case, the record might include complaints, answers, and exhibits on property values.  Real estate, employment law, worker’s comp — each has its own subset of documents.  All of these documents are found in the court file, sometimes crowded with other documents which really have no place in the record.  A good appellate attorney is able to put together a record which has all of the documents needed to satisfy the Rules of Appellate Procedure, without also including a bunch of confusing fluff.

A good appellate attorney will also put together a record which begins to tell the story of how the trial court’s decision was not fair.  While the inclusion of some documents is mandatory, the inclusion of other documents is a judgment call.  It is in the selection of these documents that the attorney paints a picture of a wronged person who needs the Court’s help.  Some materials put the appellant in a favorable light while other documents that put the appellant in a bad light.

Of course, the other side — the appellee — also gets to add documents to the record, so compiling a record is also an exercise in negotiation.  Don’t fall into the trap of thinking that only the briefs and oral arguments matter.  Equity — and fairness — start with the record.

Posted on: 13 Jan, 2014