Appellate Practice

Appellate Practice

Overseeing Appellate Litigation:The GCs Guide

PRESENTED BY

Doug Phillips/Roderick Walston/Kira Klatchko

Appellate Practice

Appeals are unique animals....

•The process is unfamiliar: we aren’t usuallydisputing the facts, and we cannot alter thosethat surfaced at trial

•The evidence is already in

•Most of the time you already have a winnerand a loser

Appellate Practice

Appeals are unique animals....

•The appellate court is not a factfinder

•Trial is about proof – appeal is about error

•It isn’t enough to show error – error must beprejudicial

Appellate Practice

Appellate Courts, Like Trial Courts, Have aDuty to Preserve Ethical Standards of Practice

•But, Appellate Courts Have a Larger Role

Discouraging bad behavior at trial

Preventing bad behavior on appeal

Preventing similar problems for other litigants

Appellate Practice

Appellate Decisions May Have Far-Reaching and Long-Lasting Consequences

•Published opinions may be forever

•Public censure and media exposure is likely

•Adverse consequence to your client and otherclients in the same field

Appellate Practice

What does this mean for a GC?

•Reviewing appellate work requires a differentmindset

How do we assess chances of winning?

How do we know if our case will have a long-termimpact/potential for publication?

How important is this issue to our case? Our client?Our other clients?

How do we review counsel’s work, and how muchshould it cost?

Appellate Practice

How do we assess chances ofwinning?

•Ask the following:

Is this an appeal from a final judgment/order?

Is this a writ or interlocutory appeal?

Appellate Practice

How do we assess chances ofwinning?

•Is this an appeal from a final judgment/order?

Are you the Appellant or the Respondent?

Appeals are usually unsuccessful

• Of the 10,975 written opinions issued by California’sintermediate appellate courts during fiscal year 2004-2005:

9,151 were affirmances,

1,198 were reversals,

and 262 were dismissed outright

Appellate Practice

How do we assess chances ofwinning?

•Is this an appeal from a final judgment/order?

Appeals are usually unsuccessful

• Out of the 5,410 Petitions for Review filed in theCalifornia Supreme Court during fiscal year 2004-2005:

The Court issued only 125 written opinions

Appellate Practice

How do we assess chances ofwinning?

•Is this an appeal from a final judgment/order?

Appeals are usually unsuccessful

• The trial court is affirmed in more than 85% of civil casesin California appellate courts

• Most reversals occur in cases where the standard ofreview is de novo

• It is very difficult to obtain a reversal on appeal wherethe standard of review is abuse of discretion orsubstantial evidence

Appellate Practice

How do we assess chances ofwinning?

•Is this a writ or interlocutory appeal?

Writs and interlocutory appeals are often moredifficult to win

• Writ procedure is arcane and requires a large amount ofwork in a short amount of time

Extraordinary writs are successful less than 8% of the time inCalifornia Courts

• Interlocutory appeals are strictly limited in both state andfederal courts

Most frequently come up with injunctive relief

Appellate Practice

How do we assess chances ofwinning?

•Is this a writ or interlocutory appeal?

Writs and interlocutory appeals are often moredifficult to win

• Writs and interlocutory appeals almost always involvethe issue of stay

To stay or not to stay, to post a bond or not to post a bond, thoseare the infernal questions you will be confronted with

Appellate courts will look harshly upon litigants who fileunmeritorious writs or interlocutory appeals in order to hold uptrial court proceedings

Appellate Practice

How do we assess chances ofwinning?

•How important is this issue, and what is thestandard of review?

Will you have an opportunity to contest the issueat a later time?

• Consider waiting, you may not have a choice

Is the issue outcome determinative?

• Are you contesting error or prejudicial error?

Is this a dispute over law or over fact?

Appellate Practice

The big picture

•How do we know if our case will have a long-term impact/potential for publication?

•How important is this issue to our case? Ourclient? Our other clients? Is this an issue of law that impacts a large number of

litigants/potential litigants?

How much money is at stake?

Are there other published cases on the topic?

Do the courts agree on the law?

What do interest groups say? Are they watching your case?

Appellate Practice

How do we review counsel’s work,and how much should it cost?

•When should we engage appellate counsel?

Early in the litigation if you expect an appeal

Why? Appellate counsel is looking for error, andcan advise on how to preserve it in the record.

Appellate Practice

How do we review counsel’s work,and how much should it cost?

•What is appellate counsel looking for?

Error on the part of the trial judge, error on thepart of the opposing counsel/party, error on thepart of the our litigators.

• Litigators are disputing facts, making motions, fightingabout jury instructions and discovery – appellate counselshould be preserving the record on appeal – if somethingisn’t in the record then it doesn’t exist on appeal.

Appellate Practice

How do we review counsel’s work,and how much should it cost?

•What is appellate counsel looking for?

How to avoid waiver on appeal

• Issues not raised at trial are almost always waived onappeal

Deadlines

• Appellate timelines and deadlines are markedly differentfrom those at trial

In Federal practice, deadlines are more straightforward than inCalifornia, where they can be difficult to calculate (the NOA isjurisdictional!)

Appellate Practice

How do we review counsel’s work,and how much should it cost?

•What should appellate counsel tell you?

Deadlines:

• When to file the Notice of Appeal or when to file thePetition for Writ

• In California, when to designate a record

• The anticipated briefing schedule

Will there be a mediation?

Will there be oral argument?

Are there special rules in the Circuit/District you’re in

Appellate Practice

How do we review counsel’s work,and how much should it cost?

•What should appellate counsel tell you?

Issues of Merit:

• What error is alleged?

• Should the error be raised by writ or appeal, or both?

• What is the standard of review?

• What are your chances for success?

Appellate Practice

How do we review counsel’s work,and how much should it cost?

•What should appellate counsel tell you?

Are you an interested non-party

• Do you represent an interest group impacted by arecently published decision?

Should you seek depublication?

• Are you interested in a case currently being consideredby an appellate court?

Should you write an amicus letter/amicus brief?

Appellate Practice

How do we review counsel’s work,and how much should it cost?

•What should appellate counsel tell you?

Cost

• Counsel should prepare a budget that includes allrelevant deadlines, expected cost of record preparation,research, briefing, oral argument, and related motionsfor judicial notice

Appellate Practice

How do we review counsel’s work,and how much should it cost?

•How frequently should you expect an update?

Appeal: When the Notice of Appeal is filed, whenthe record is designated, when the mediation isset, when the briefing schedule is set, prior tobriefs being filed.

• In the 9th Circuit, the time between NOA and Opinionmay exceed 2 years.

• In California, dispensation times may vary, but averagebetween 360-540 days.

Appellate Practice

How do we review counsel’s work,and how much should it cost?

•How frequently should you expect an update?

Writ: Prior to the Petition being filed, when/if anAnswer/Response is filed, when/if the court ordersargument, when the court issues its opinion orpostcard rejection

• Writs are resolved quickly, usually between 1 week and 3months in California courts.

Appellate Practice

Overseeing an appeal: The ProcessRecord

Preparation

Conflicts andother

preliminaryforms

Settlementconferenceprocedure

Motions

Briefing

Oral Argument

Opinion

Petition forRehearing,Petition for

Review(Depublication

Request)

Remittitur

Attorney FeesMotion

Notice of Appealfrom Final

Judgment orOrder

Appellate Practice

Overseeing a writ: The ProcessRecord

Preparation

WritPetition/Stay

PreliminaryOpposition

Court Order(denial, Palma,

alternative/OSC)

AdditionalBriefing

OSC Hearing

Opinion

Petition forReview

(DepublicationRequest)

Filing/Issuanceof Writ

Adverse order

Appellate Practice

Miscellaneous tips

• Don’t assume appellate and trial counsel shouldbe the same person/same firm Appellate attorneys view the facts in a different light

and are better able to realistically assess the chanceson appeal

• Don’t assume trial counsel will inform you ofappellate deadlines Appellate deadlines differ from trial deadlines and are

often jurisdictional, if you are interested in an appeallet counsel know as soon as possible

Appellate Practice

Miscellaneous Tips

•Though appellate costs can be high, youshould question billing by more than twoattorneys

Appellate Briefs and Writ Petitions are deserving ofcraftsmanship, they should not be compiled by 10attorneys each of whom drafts one section

• If your invoice lists more than 2 appellate attorneys, askwhich one is actually responsible for writing your briefs

Appellate Practice

Miscellaneous Tips

•The attorney who drafts the brief/petitionshould argue the case

The person who drafts the main brief/petition ismost knowledgeable about the appeal

• The lead drafter is best suited to argue the case beforethe Court, and will need less time to prepare for oralargument than someone who is new to the case– thatwill translate into a direct cost-savings to the client

Appellate Practice

Concluding Comments

•Managing an appeal is simple if youunderstand the appellate process and yourchances of success

Ask questions early and often

Demand a budget and a timeline

If you have particular concerns talk directly withthe drafter