Five Things to Know about Appealing in Nevada

1. You must preserve your arguments for appeal. The easiest way to lose an appeal is to fail to make an argument in the trial court. Unless the legal challenge is to subject matter jurisdiction, an appellate court will not consider issues raised for the first time on appeal. Make your legal arguments in written motions where possible, make sure sidebar conversations are recorded, and make sure jury voir dire is recorded.
2. You must get important evidence into the record. Every factual statement contained in a brief must be supported by a citation to the record on appeal, to the filing, document, or testimony that establishes the fact. If evidence is not admitted, make a record of the proffer. If a fact or event cannot be found in the record, then as far as the appellate court is concerned, it did not happen. This rule is so critical that attorneys submitting briefs to the Nevada appellate courts must certify record citation has been provided for all record citations. NRAP 28(e); 28.2(a)(3).
3. You must file the notice of appeal on time. The Nevada appellate courts show great forbearance in granting extensions for the time to file briefs, including granting a one or two- week extension merely upon a telephone request. But a notice of appeal is a jurisdictional requirement. An untimely appeal dooms any civil appeal. A criminal appeal can survive an untimely filing only upon a showing of an unlawful deprivation of the right to file a timely appeal. NRAP 4(c)(1).
4. You must focus on the legal issues. The purpose of an appeal is to remedy legal errors or abuses of discretion by the trial court. An appeal is not an opportunity to point out the flaws in the personalities of the trial judge, opposing counsel, or the opposing party. Nor is it the place to list a host of grievances that had little or no impact on the fairness of the proceedings below. Nevada has a strong complement of appellate judges, ready, willing, and able to correct errors and abuses. Make it easier for them to do so by telling the appellate court your story from your client’s point of view, but leave out personal invective.
5. You have a say in which appellate court hears your case. Nevada has two appellate courts: the Court of Appeals and the Supreme Court of Nevada. While all appeals from Nevada district courts automatically go first to the Supreme Court, a majority are now pushed down to the Court of Appeals, in accordance with the presumptions found in NRAP 17(b). But even if your case involves issues that are presumptively heard by the Court of Appeals, you have an opportunity to explain why you believe your case should be heard by the Supreme Court. Use your mandatory routing statement to explain why your case is one of first impression involving constitutional or common law, or raises a principal issue of statewide public importance. NRAP 17(a)(11), (12).

About the author

Tami D. Cowden, Esq. is an appellate of counsel at Greenberg Traurig, LLP and has decades of experience arguing before the Nevada Supreme Court and federal appellate courts. Tami was the founding Chair of the State Bar’s Appellate Litigation Section.