As mentioned in a recent post, a panel of law clerks from the Idaho Supreme Court and the Idaho Court of Appeals provided advice on the practice of appellate law, based on their experience as clerks, at the April meeting of the Idaho Appellate Practice Section of the Idaho State Bar. Here are some observations the panel made regarding oral argument and attorney fees on appeal.

Oral Argument

  • Know the record.
  • Listen to the question and make sure you understand and answer it.
  • Practice, practice, practice.
  • Oral argument can be a good avenue to highlight policy considerations.
  • It is easier to lose a case on oral argument than to win it.
  • Provide supplemental authority to the Court (as necessary) well in advance of oral argument.

Attorney Fees on Appeal

  • If you are requesting attorney fees pursuant to Idaho Appellate Rule 11.2, you must cite the specific document that you believe to have been filed in violation of the rule.
  • If an award of attorney fees on appeal is possible, a respondent should carefully consider whether to assert a cross-appeal. Success on a cross-appeal may affect the Court’s determination of which party prevailed on appeal, which is relevant in determining an award of attorney fees on appeal.
  • Idaho Appellate Rule 35 lays out the requirements for seeking attorney fees on appeal. In particular, you must specifically request fees in the issues presented and cite to specific legal authority supporting your request in the argument.

The panel of law clerks included Paul Hendrikson (Justice J. Jones), Maren Adams (Justice Eismann), Brian Church (Judge Gutierrez), and John Spaulding (Judge Lansing). Alison Graham (Judge Gutierrez) moderated.