kansas appellate practice handbook - Kansas Judicial Branch

9- Brief Writing
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and the hearing on the motion in the statement of facts
serves only as a distraction. Finally, include – but minimize
– negative critical facts. Rambo and Pflaum, Legal Writing by
Design § 21.6, p. 371 (2001).
The arguments and authorities relied on, separated by
issue if applicable. Each issue must begin with a citation to
the appropriate standard of review. Each issue must begin
with a pinpoint reference to the location in the record on
appeal where the issue was raised and ruled on or, if the
issue was not raised below, an explanation why the issue
is properly before the court. Rule 6.01(a)(5). “Issues not
raised before the district court generally cannot be raised on
appeal. Exceptions may be granted if: (1) the newly asserted
theory involves only a question of law arising on proved or
admitted facts and is finally determinative of the case; (2)
consideration of the theory is necessary to serve the ends of
justice or to prevent denial of fundamental rights; or (3) the
district court’s judgment may be upheld on appeal despite its
reliance on the wrong ground.” State v. Foster, 290 Kan. 696,
702, 233 P.3d 265 (2010). The appellant must identify which
of these exceptions applies and why it is applicable. State v.
J.D.H., 48 Kan. App. 2d 454, 459, 294 P.3d 343 (2013).
PRACTICE NOTE: When it comes to authorities,
choose quality over quantity. String cites are almost
always unnecessary. Berry, Effective Appellate Advocacy:
Brief Writing and Oral Argument, p. 122 (4th ed. 2009).
An appellant’s brief may contain:
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An appendix – without comment – consisting of limited
extracts from the record on appeal that are critical to
the issues to be decided. The appendix is for the court’s
convenience and is not a substitute for the record itself.
It is inappropriate to attach as an appendix any item that
is not a part of the record on appeal. See Haddock v. State,
282 Kan. 475, Syl. 21, 146 P.3d 187 (2006) (“An appendix
to an appellate brief is not a substitute for the record on
appeal, and material so attached will not be considered by
this court.”) The brief may make reference to the appendix,
2013