Council of Appellate Lawyers

One of the things we all learned in grade school is that no one likes a poor loser.  As we are socialized, we are taught that when one engages in a battle of speed, strength, or even words, the less worthy opponent is supposed to accept the outcome of the contest with a measure of grace and style.  If the contestant refuses to accept the loss, he or she can expect taunts and jeers from playmates.

Not everyone learned this lesson well, however.  And in the Eleventh Circuit, rather than facing schoolyard taunts for your inability to lose gracefully, you might be facing sanctions.

In a decision released earlier this year, the Eleventh Circuit condemned those who refuse to accept a final arbitration award and instead begin an appellate campaign modeled after Sherman’s March to the Sea.  Enough! cried the Court. “When a party who loses an arbitration award assumes a never-say-die attitude and drags the dispute through the court system without an objectively reasonable belief it will prevail, the promise of arbitration is broken.”  B.L. Harbert Int’l v. Hercules Steel Co., No. 05-11153 (11th Cir. Feb. 28, 2006) (available at http://floridaarbitrationlaw.com/cases/bl_%20harbert_v_hercules.pdf).

What arbitration “promises,” of course, is an expert and expeditious resolution to a legal problem.  Arbitration was intended to be an alternative to long, drawn-out proceedings in the public judicial forum; a respite for businesses that wanted their disputes settled knowledgeably, privately, and quickly.  As the Eleventh Circuit has recognized, those goals are endangered by pit-bull appellate tactics.  Rather than providing “alternate dispute resolution,” current arbitration law still allows the “poor losers” to engage in the same long, drawn-out proceedings in the public judicial forum by challenging the award in court.

The Eleventh Circuit has apparently seen enough of these appeals. It has now given parties and their counsel an explicit warning:

[I]n order to further the purposes of the FAA and to protect arbitration as a remedy, we are ready, willing, and able to consider imposing sanctions in appropriate cases.  While Harbert and its counsel did not have the benefit of this notice and warning, those who pursue similar litigation positions in the future will.

Id. at 21.
Now, one might think that the Harbert case must have presented some outrageous or egregious circumstances which simply pushed the Court to the edge of reason.  Not so; Harbert is about as boring an arbitration dispute as one will find.  As the Court noted, “[t]his is a typical contractual dispute in which the parties disagree about the meaning of terms of their agreement.” Harbert, at 14.

In 2000, the defendant, Hercules Steel Co., contracted to provide the steel fabrication and erection needed for Harbert’s construction project at Fort Bragg, North Carolina.  Harbert became dissatisfied with the timeliness of Hercules’s work and stopped making payments.  Hercules demanded arbitration in early 2003, and Harbert counterclaimed.  The main disagreement of the parties was which of two progress schedules created by Harbert applied to Hercules’s work.  If it was the 2000 schedule, Hercules had failed to perform adequately; if it was the 3000 schedule, Hercules had complied with the applicable deadlines.  After seven days of hearings and consideration of the parties’ legal arguments, the arbiter issued an award in favor of Hercules.  He determined that the 2000 schedule controlled and awarded Hercules the subcontract balance and the interest owing on that sum.  Dissatisfied with the arbiter’s reasoning, Harbert filed a motion to vacate the arbitration award in the District Court.  Harbert, at 8.

Under the FAA, there are four narrow grounds on which one can base a motion to vacate an arbitration award:

(1)       where the award was procured by corruption, fraud, or undue means;
(2)       where there was evident partiality or corruption in the arbitrators;
(3)       where the arbitrators were guilty of misconduct in refusing to postpone the hearing, or in refusing to hear evidence, or of any other misbehavior by which the rights of any party may have been prejudiced; or
(4)       where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

9 U.S.C. § 10(a).  In addition, the Eleventh Circuit recognizes three non-statutory grounds for vacatur:

(1)       where the award is arbitrary and capricious;
(2)       where enforcement of the award would be contrary to public policy; or
(3)       if the award was made in manifest disregard for the law.

Harbert, at 10 & n.2.

Here, Harbert based its challenge to the arbiter’s award on the third non-statutory ground: “manifest disregard of the law.” The “manifest disregard” standard requires proof that the arbiter, first, was conscious of the controlling law and, second, deliberately and intentionally ignored it.  Id. at 11 (citing Montes v. Shearson Lehman Bros., Inc., 128 F.3d 1456, 1461 (11th Cir. 1997)). That an arbiter might have misinterpreted, misstated, or even misapplied the law is not enough. “Manifest disregard” is an exceptionally high standard, expected to be encountered very rarely. Id. at 11, 13 (“[Montes] remains the only case in which we have ever found the exceptional circumstances that satisfy the exacting requirements of this exception.”).

The problem with Harbert from the Eleventh Circuit’s point of view was that nothing in the facts of the dispute came within “shouting distance” of a claim of manifest disregard. Rather, Harbert was simply unhappy with the outcome of the arbiter’s decision and was trying to avoid the inevitable. It was Harbert’s adamant refusal to give up the ghost that annoyed the Court.

Certainly we can all identify with the Court’s frustration and impatience.  Arbitration, touted as a hallmark of “alternative” dispute resolution, is based on a theory of quick and expert decision making.  Conceptually, the process sounds wonderfully simple, temptingly expeditious. It often is not. Not only can the arbitration process itself drag on for years if not tightly reined, once the parties turn to the court system to either vacate the decision of the arbiter or confirm it, a whole new playing field is opened up, allowing a dissatisfied litigant to wend through at least two more levels of review: the District Court and the Court of Appeals (or the state equivalents thereof).  Resort to the judicial system can turn one’s quick arbitration into the modern equivalent of Jarndyce v. Jarndyce.  (For example, I am currently handling two separate arbitration appeals where the losses occurred more than a dozen years ago; one of the two is headed back to the state Supreme Court for a second time!)

The Eleventh Circuit’s fit of pique should be welcomed, and copied by other courts far and wide.  It is too easy for the poor losers to stall and delay and deprive their opponent of the benefits that led them to choose arbitration in the first place. If not brought to task, the poor losers will flood the system and drown us all.

The more cases there are like this one, in which the arbitrator is only the first stop along the way, the less arbitration there will be.  If arbitration is to be a meaningful alternative to litigation, the parties must be able to trust that the arbitrator’s decision will be honored sooner instead of later.

Courts cannot prevent parties from trying to convert arbitration losses into court victories, but it may be that we can and should insist that if a party on the short end of an arbitration award attacks that award in court without any real legal basis for doing so, that party should pay sanctions.  A realistic threat of sanction may discourage baseless litigation over arbitration awards and help fulfill the purposes of the pro-arbitration policy contained in the FAA.

Harbert, at 20.

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The 2005 amendments to the Bankruptcy Code received significant public attention due to their effect on individual bankruptcy filings.  These amendments, however, also contain many below-the-radar changes, including a provision that should be of great interest to appellate lawyers.  Congress amended the bankruptcy appellate jurisdiction statute (28 U.S.C. § 158) to give the lower courts power to certify bankruptcy court decisions (whether final or interlocutory) for direct appeal to the court of appeals.  See 28 U.S.C. § 158(d)(2).
Before this change, when seeking review of a bankruptcy court order, a party had to first appeal to the district court (or the Bankruptcy Appellate Panel) and only then—assuming that the district court’s decision was final—could review be sought in the courts of appeals.  Under the pre-2005 statute, the courts of appeals’ jurisdiction was limited to appeals of final judgments entered under section 28 U.S.C. §158(a) and (b).  28 U.S.C. § 158(d).  A party wishing to appeal a non-final district court order was forced to rely on 28 U.S.C. § 1292(b) to appeal such an order to the court of appeals.  See 28 U.S.C. § 1292(b); Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 252-54 (1992); In re Texas Extrusion Corp., 844 F.2d 1142, 1156 n.18 (5th Cir. 1988).

Despite the theoretical availability of dual appellate review by the district court and court of appeals, bankruptcy appeals “often languish in the district courts until they become moot” making dual appellate review illusory in some instances.  See Testimony of Hugh Ray, Former Chair of Business Bankruptcy Committee of the Business Law Section of the American Bar Association, 1999 WL 1079983 (Nov. 2, 1999).  In addition, because bankruptcy appeals frequently “languish” in the district court, the circuit courts were not issuing decisions on a number of critical bankruptcy issues—and therefore were not establishing precedent for the bankruptcy and district courts within the various circuits on these issues.  After several failed attempts to broaden the appellate courts’ jurisdiction, Congress finally succeeded in 2005 and explained the need for the changes as follows:
Under current law, appeals from decisions rendered by the bankruptcy court are either heard by the district court or a bankruptcy appellate panel. In addition to the time and cost factors attendant to the present appellate system, decisions rendered by a district court as well as a bankruptcy appellate panel are generally not binding and lack stare decisis value.

To address these problems, section 1233 of the Act amends section 158(d) of title 28 to establish a procedure to facilitate appeals of certain decisions, judgments, orders and decrees of the bankruptcy courts to the circuit courts of appeals by means of a two-step certification process.

…. This procedure is intended to be used to settle unresolved questions of law where there is a need to establish clear binding precedent at the court of appeals level, where the matter is one of public importance, where there is a need to resolve conflicting decisions on a question of law, or where an immediate appeal may materially advance the progress of the case or proceeding. The courts of appeals are encouraged to authorize direct appeals in these circumstances.

H.R. Rep. No. 109-31, at 148 (House Judiciary Comm. Rep. by Rep. Sensenbrenner) (Apr. 18, 2005).
The Effective Date and Standard for Obtaining Direct Review in the Court of Appeals

This new provision took effect 180 days after the enactment (Oct. 17, 2005) and applies only to bankruptcy cases filed after on or after October 17, 2005.  Bankruptcy Abuse & Consumer Protect Act of 2005, § 1501(a); In re McKinney, 2006 WL 2041319, at *1 (7th Cir. July 25, 2006)(holding that the statute is not applicable to proceedings filed before the effective date); In re Wacaewski, 2006 WL 1594141, at *5 (Bankr. M.D. Fla. May 5, 2006)(same).  Section 158(d)(2) “will allow parties, under certain circumstances, to bypass intermediate appellate review by a district court or a bankruptcy appellate panel of a bankruptcy judgment or order, including an interlocutory order, and obtain direct circuit court review of the bankruptcy court decision.”  Hon. Dennis Montali, Revised Bankruptcy Appellate Procedures under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (presented to the Section of Business Law, American Bar Assoc. Aug. 8, 2005); id. at 7 (stating that section 158(d) “expand[s] the jurisdiction of the circuit court to allow it to hear . . . interlocutory orders of the bankruptcy court”).

Under 28 U.S.C. § 158(d)(2)(A), the court of appeals has jurisdiction over appeals “described in the first sentence of subsection (a) if the bankruptcy court, the district court, or the bankruptcy appellate panel” or the parties jointly certify that (i) the judgment “involves a question of law as to which there is no controlling decision of the court of appeals of the circuit or of the United States Supreme Court, or involves a matter of public importance,” (ii) the judgment “involves a question of law requiring resolution of conflicting decisions,” or (iii) “an immediate appeal [would] . . .  materially advance the progress of the case or proceeding in which the appeal is taken.”  28 U.S.C. 158(d)(2)(A)(i)-(iii).  Only one of the three certification requirements must be met for the lower court to certify a direct appeal to the court of appeals. The bankruptcy court, district court, or Bankruptcy Appellate Panel “shall” make the certification if (i) on its own or on a party’s motion the court determines that any of the above circumstances are satisfied, or (ii) the court receives a request by a majority of appellants and majority of appellees to make the certification.  Thus, these courts have no discretion to decline to certify an appeal if one of the certification requirements is satisfied or a majority of appellants and a majority of appellees agree that certification is appropriate.

The new direct appeal provision also provides procedural guidance.  A request for certification must be made no later than 60 days after the entry of the judgment, order, or decree sought to be appealed.  28 U.S.C. § 158(d)(2)(E).  Keep in mind that while a party may have 60 days to seek direct appeal, any notice of appeal of a bankruptcy court order must be filed within 10 days of entry.  Fed. R. Bankr. P. 8001.   Until formal rules are adopted, section 1233(b) of the Act establishes temporary procedural rules for direct appeals to the court of appeals.   Bankruptcy Abuse & Consumer Protect Act of 2005, § 1233; see In re Adoption of Interim Procedural Rules, 332 B.R. 199 (B.A.P. 9th Cir. 2005) (implementing interim rules governing the direct-appeal statute).  These rules make clear that a court may certify an appeal “only with respect to matters pending in the respective [court].”  Id., § 1233(b)(2).  An appeal under section 158(d) “does not stay any proceeding of the bankruptcy court, the district court, or the bankruptcy appellate panel from which the appeal is taken, unless the respective [court] . . . issues a stay of such proceeding pending the appeal.”  28 U.S.C. § 158(d)(2)(D).
Court of appeals’ level review is discretionary.  See 28 U.S.C. § 158(d)(2)(A).  To obtain review by the court of appeals, the appellant must file a petition for permission to appeal in the court of appeals under Federal Rule of Appellate Procedure 5.  Bankruptcy Abuse & Consumer Protect Act of 2005, § 1233(b)(3).  That petition must (i) “be filed with the circuit clerk not later than 10 days after the certification is entered on the docket of the bankruptcy court, the district court, or the bankruptcy appellate panel from which the appeal is taken; and (ii) have attached a copy of the certification.”  Id., § 1233(b)(4).  Section 158(d) does not create any standards applicable to the court of appeals’ decision to dispose of the petition for permission to appeal.  Accordingly, in seeking the court of appeals’ authorization to pursue a direct appeal, consult section 1292(b) decisions from the appropriate circuit.

One of the more interesting aspects of the new direct appeal provision is that it grants the court of appeals jurisdiction over direct appeals from interlocutory bankruptcy orders under a much less rigid standard than in interlocutory appeals in ordinary civil appeals.  See 28 U.S.C. § 158(d)(2) (granting the court of appeals jurisdiction over appeals “described in the first sentence of subsection (a)”).  Previously, the court of appeals’ jurisdiction over the appeal of a district court’s interlocutory order in a bankruptcy case was limited by section 1292(b).  See Connecticut Nat’l Bank, 503 U.S. at 252-54. Under 28 U.S.C. § 1292(b), the ordinary interlocutory appeal provision, a party must establish all of the following:  (i) the order being appealed involves a controlling question of law; (ii) as to which there is substantial ground for difference of opinion; and (iii) an immediate appeal must materially advance the termination of the litigation.  28 U.S.C. § 1292(b).  In contrast, under the bankruptcy direct appeal provision, only one of the three elements for certification must be satisfied, and the parties can jointly certify that one of those requirements is met.  28 U.S.C. § 158(d)(2)(A)-(B).  The requirements for certification under section 158(d)(2) are arguably less restrictive as well.

One other inconsistency that may arise as a result of the enactment of the direct appeal provision involves appeals to the court of appeals from the district court when the district court has exercised its original, as opposed to appellate jurisdiction, under section 157(d).  See 28 U.S.C. § 157(d) (empowering the district court to withdraw the reference to the bankruptcy court).  The new direct appeal provision applies only to appeals under section 158(d).  When the district court has exercised its original jurisdiction, the court of appeals’ jurisdiction is grounded in either section 1291 (final judgment) or section 1292(b) (interlocutory appeals).  See 28 U.S.C. §§ 1291, 1292(b); In re Cajun Elec. Power Co-Op, Inc., 119 F.3d 349, 353 (5th Cir. 1997) (“Because the district court did not sit as a bankruptcy appeals court but heard the case itself as a court of bankruptcy, 28 U.S.C. § 158(d) does not confer appellate jurisdiction on this court. Instead, our jurisdiction is governed by 28 U.S.C. §1291.”).  Thus, interlocutory appeals from the district court when the court has exercised its original jurisdiction must satisfy the more rigorous interlocutory appeal provision contained in section 1292(b).  See 28 U.S.C. § 1292(b).

Decisions Applying the New Direct-Appeal Provision

Only a handful of courts have thus far applied the new statute.  In In re Salazar, 2006 WL 827842 (Bankr. S.D. Tex. 2006), the bankruptcy court was presented with a novel Chapter 13 question—whether “ineligible” debtors who did not first seek credit counseling (as the revised Bankruptcy Code requires) are entitled to the protection of the Bankruptcy Code’s automatic-stay provision—and on its own certified the case for direct appeal to the Fifth Circuit.  The bankruptcy court focused on the importance of the questions presented and the lack of authority on that question in the Fifth Circuit in opting to certify a direct appeal under section 158(d)(2)(A)(i):
Pursuant to 28 U.S.C. § 158(d)(2), the Court certifies this decision for direct appeal to the United States Court of Appeals for the Fifth Circuit. Based on a review of case law in this and other jurisdictions, as well as a consideration of the importance of this matter for many consumer debtors and their creditors, the Court believes that direct appeal of the present order is appropriate under § 158(d)(2)(A)(i). . . .

In Re Salazar, 2006 WL 827842, at *11-12.  The bankruptcy court, however, cautioned the parties that “certification in no way alters a party’s ordinary requirements in filing a notice of appeal” and also reminded the parties that a supplement containing a short statement of the basis of the bankruptcy court’s certification may be appropriate.  Id. at *12.

In In re Elmendorf, 2006 WL 1984793 (Bankr. S.D.N.Y. July 18, 2006), the bankruptcy court also addressed issues related to a debtor’s failure to file a credit counseling certificate and certified the following questions for direct appeal to the Second Circuit under section 158(d)(2):  (i) whether a debtor who does not undergo credit counseling commenced a bankruptcy case within the meaning of sections 301 and 302 of the Bankruptcy Abuse and Consumer Protection Act of 2005; (ii) whether the Code’s automatic-stay provision is invoked by such a filing; and (iii) what is the proper remedy (dismissal for cause or the striking of the bankruptcy petition) for filing a petition without the required credit counseling certificate.  2006 WL 1984793, at *13.

In In re Virissimo, 332 B.R. 208 (Bankr. D. Nev. 2005), the bankruptcy court, again on its own, certified the following question to the Ninth Circuit:  Do the 2005 revisions to the Bankruptcy Code, which limit the amount of the homestead available to those who have owned their homestead less than 1,215 days, apply to Nevada debtors?  332 B.R. at 209:

This court fully recognizes and appreciates the work done by, and expertise of, the bankruptcy appellate panel and the district court in hearing and deciding appeals from the bankruptcy court.   This court is also fully cognizant of the tremendous workload of the Ninth Circuit Court of Appeals.   However, the issue presented in this case is one which will recur in Nevada as well as other districts in the Ninth Circuit and will impact the administration of bankruptcy estates until the issue is ultimately decided.  As this involves the statutory construction of a hotly contested provision of BAPCPA and is a matter of first impression, there is no question that the Court of Appeals will ultimately be required to determine the question.   Hence not merely one, but all three, of the criteria specified in § 158 exist and justify an immediate appeal in this case.

Id.

Litigation is just like the human body.  If you wait too long to get treatment, even the best doctor may not be able to cure you.  Too often, trial lawyers bring their cases to appellate lawyers late in the litigation process.  By then, the pleadings and positions may be set in stone, a legal issue may have been waived, or an important privilege may be gone.

I am a staunch advocate of involving appellate lawyers from the very beginning of the litigation process, as a form of preventive medicine for the case and any future appeal.  My firm, a commercial trial boutique, adopted this philosophy at its inception and it has produced incredible and consistent results.

Time and again, we have seen that the active involvement of appellate lawyers from the beginning of a case not only helps avoid a bad result, it can also make the case “healthier” by identifying additional causes of action, damages and factual and legal weaknesses in our—or our opponent’s—case.

Our “appellate lawyers” get involved long before the jury is seated, supporting our trial lawyers and clients by developing legal strategies, identifying issues, helping formulate discovery plans, and writing critical motions.  By adopting this philosophy, any trial lawyer or firm can achieve similar results. 

Appellate lawyers have special skills that should be tapped before trial, which also reduce the overall costs of the case.

Unfortunately, many trial lawyers and firms are hesitant to embrace this philosophy, usually because they are highly compartmentalized or internally competitive.  Understanding the special skills that appellate lawyers can bring to a case before trial is crucial to overcoming this prejudice. 

Whereas trial lawyers excel in “building” cases by developing testimony, evidence, and themes, appellate lawyers specialize in finding the factual weaknesses of a case, distinguishing the law, and crafting arguments that will be successful in the appellate court.  It is not that we see the glass as “half empty” whereas the trial lawyer sees it as  “half full”; we are simply wired this way—which is exactly why we became appellate lawyers.

We excel at looking at cases under a microscope.  We love to look for missing evidence and legal elements and, depending on the assignment, to exploit them or fix them.  Appellate lawyers also have an insatiable interest in following legislative and rule changes and following appellate court opinions looking for emerging and changing areas in the law.

It is not a question of intellect.  Although many trial lawyers undoubtedly possess these same skills, the majority of their time is spent on matters that do not require their use or development.  They spend their time waging discovery battles, preparing witnesses, developing examinations, and getting ready for trial.  A cardiologist and an anesthesiologist both went to medical school, but you would never see them as interchangeable.  Trial and appellate lawyers are no different.  Although we obtained the same law license, our craft is not the same.

Despite these truths, many firms, trial lawyers, and their clients also believe that the involvement of an appellate lawyer from the beginning of the case is either unnecessary or a luxury only to be used in the biggest cases.

My firm’s philosophy, however, has demonstrated time and again that the most efficient way to achieve the best result, save money, preserve error, and avoid a costly (and possibly unsuccessful) appeal is to utilize appellate counsel throughout the entire case.

There are so many benefits to involving an appellate lawyer early in the process that they cannot all be discussed in this brief article, but a few generalizations can be made.

Use an appellate lawyer to analyze your claims and damages.

Every trial lawyer should involve an appellate lawyer in analyzing potential claims, defenses, and recoverable damages.  Because the typical appellate lawyer spends numerous hours every week simply reading the latest opinions from the Supreme Court and the state and federal courts in which she practices, she is not only aware of new causes of action, but also ones that have recently been restricted or damages that are being expanded or limited by the courts.  Utilizing this resource insures not only that you maximize your claims, defense, and damages, but also that your pleadings take into account what may happen over the coming years.

Use an appellate lawyer to identify legal trends that could impact the case.

In addition to guiding a trial lawyer’s pleadings in the right direction, an appellate attorney can identify emerging legal trends that may affect the case or recommend arguments for the adoption, change, or expansion of the law.

Few trial lawyers with active trial dockets have the time or the inclination to follow judicial trends.  On the other hand, appellate lawyers devote substantial time to these endeavors—and they actually enjoy it!  Most appellate lawyers analyze and follow national trends, emerging causes of action, and the restriction of prior precedent.  We also attend seminars where trial and appellate judges share their views on these same issues.

For example, an appellate lawyer knows if a justice who wrote a dissenting opinion ten years ago—that could possibly benefit or hurt your case—now has more like-minded colleagues on the court that would be willing to adopt the dissent’s position.  When an appellate lawyer uses his or her knowledge from the beginning of the case, the lawyer adds value by identifying the legal trends that can positively affect a case and those that could leave the case in an undesirable position on appeal.

Use an appellate lawyer to help focus your discovery efforts.

What in the world can an appellate lawyer offer a trial lawyer with regard to discovery?  Surprisingly, a lot.

One of the key benefits that an appellate lawyer can provide before discovery begins it to distill the key legal elements of a case.  Identifying the elements helps further define the scope of discovery and insures the discovery effort will develop the proof needed for summary judgment or trial.

The involvement of an appellate lawyer also saves time and money, because the written discovery and depositions will be focused on the key facts needed to win the case.  At my firm, before a single deposition is taken, an appellate lawyer drafts the questions, instructions, and definitions the jury will be given at the end of the trial, which provides the roadmap for all future discovery.  If the case will be tried to the bench, the appellate lawyer will draft the findings of fact and conclusions of law that the client would want entered by the court.

Of course, appellate lawyers can also be instrumental if the trial court has ordered the production of privileged information.  An appellate lawyer can help analyze the likelihood of obtaining emergency relief in the appellate court.  If an emergency petition will be filed, it is critical that an appellate lawyer be involved because emergency petitions are rarely granted.  An appellate lawyer can identify and persuade the appellate court as to why the emergency is different and why the petition should be granted.

Use an appellate lawyer to create better trial motions and briefs.

It is almost universally true that our already overburdened courts are granting fewer hearings and determining the majority of motions based solely on written motions and briefs.  This is particularly true with summary judgments in federal courts.  Coupled with the fact that trial court judges never have all the resources they need, filing a lengthy, confusing, or unfocused motion or brief will rarely achieve the desired result or gain the favor of the court.  You had better have a short, clear, well-written motion.

Therefore, any important motion or brief—particularly motions for summary judgment—should never be filed until an appellate lawyer has read it.  Too often I have defended a summary judgment on appeal that was correctly granted, but could be overturned simply because either:  (a) a weakness exists in its evidentiary support that could have been corrected; or (b) a trial lawyer inadvertently created a fact issue in an affidavit that previously did not exist.  Involving an appellate lawyer before filing or opposing a summary judgment can avoid these pitfalls and any risk on appeal.

In addition, involving an appellate lawyer in motion practice provides a better understanding of the motion’s chances for success.  Appellate lawyers have the ability to examine motions through the same disinterested eyes as the court.  As a result, if a motion convinces us you should prevail, it is more likely to convince the court.

Bring an appellate lawyer to critical hearings before trial to build credibility and assist the court.

Why would a trial lawyer need an appellate lawyer at hearings that occur long before trial?  A number of reasons.  One of the most obvious is preservation of error.  But the least obvious one is the most compelling—to build credibility for your side’s position and to assist the court.

Cases can take years to get to trial.  Along the way, many important legal battles that set the stage for success or failure at trial can be won or lost.  In my experience, the trial court is continually evaluating the credibility of the attorneys and their legal arguments throughout the litigation process.  Judges, like lawyers, simply cannot know all the law.  They rely on lawyers to provide them with the correct law that applies to the facts of the case.

Bringing an appellate lawyer to critical hearings helps build this type of legal credibility throughout the case.  Hopefully, the court will recognize that the appellate lawyers know the law, and the trial lawyer knows the facts, and that together they endeavor to bring them both to the court so that it can fairly decide the issues.

Once the court reaches this conclusion, it will rely more and more on the appellate lawyer for guidance.  It will also be more difficult for the opposition that brings an appellate lawyer to the courthouse for the first time on the day of trial.  If an appellate lawyer has done her job, she has built credibility for a side’s legal arguments before trial begins, and the court views her as an assistant to the court.

This does not mean that a trial lawyer should bring an appellate lawyer to critical hearings just to let the court know his client might appeal an adverse ruling.  Unfortunately, I have seen this tactic more than once.  I assume it is believed to somehow influence the trial court’s decision.  This ill-advised strategy has resulted in too many clients paying for an appellate lawyer to simply warm a seat at counsel’s table.

In my experience, judges are not influenced—or impressed—by appellate lawyers who do not participate in some way in the hearing.  Judges know which of their decisions can be appealed before trial.  What the trial court needs is trial and appellate lawyers that bring the court the law and the facts necessary for its decision in a timely, effective, and concise manner.

Of course, appellate lawyers are also a critical part of any successful trial team, but the skills they offer during trial are beyond the scope of this article.

In sum, I urge every appellate lawyer, trial lawyer, and firm to create an active partnership before trial, between trial and appellate lawyers.  My firm has found that it leads to incredible results, cost savings for our clients, and the favor of the courts in which we practice.

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The long-standing controversy over the citation of unpub­lished opinions took a sudden turn in April when the Supreme Court adopted an amendment to the federal rules to permit the citation of such decisions.  The rule was recommended to the Supreme Court by the Judicial Conference of the United States. At the time, now-Chief Justice John G. Roberts and Justice Samuel A. Alito were members of the Appellate Rules Committee that recommended the change.  The new rule applies prospectively and will allow citation of unpublished decisions issued on or after January 1, 2007.

Unpublished opinions originated in the 1960s as a space- and time-saving device for the federal courts.  Since that time, the use of such decisions has grown dramatically.  Based on statistics collected by the Administrative Office of the U.S. Courts, in 2005 approximately 82% of the decisions issued by the federal circuit courts were unpublished.2  The rate of unpublished decisions varies by circuit, from a high of 92% in the Fourth Circuit to a low of 56% in the Seventh Circuit.3  The Sixth Circuit lies somewhere in the middle, with approximately 84% unpublished.4

Four circuit courts—the Second, Seventh, Ninth, and Federal Circuits—currently ban the citation of unpublished decisions, except in unusual cases.  The remaining nine permit such citations, although some courts, including the Sixth Cir­cuit, have rules discouraging it.5

The new rule will appear as Federal Rule of Appellate Procedure 32.1 and will take effect December 1, 2006 un­less Congress decides to veto it.  As adopted by the Supreme Court, it reads:

Rule 32.1. Citing Judicial Dispositions

(a)  Citation Permitted.  A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been:

(I)  designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like; and

(II) issued on or after January 1, 2007.

(b)  Copies Required.  If a party cites a federal judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database, the party must file and serve a copy of that opinion, order, judgment, or disposition with the brief or other paper in which it is cited.

The amendment is one of the most controversial ever made to the federal appellate rules.  The Appellate Rules Com­mittee received more than 500 comments on the proposal, the majority of which opposed it.  Those in favor of the change argued that rules barring the citation of unpublished opinions reduce courts’ accountability by permitting the issuance of decisions that cannot be cited and are not precedential.  They argued that such rules tell parties “we may have decided this issue today, but don’t try to tell us about it tomorrow.”

Those opposed to the amendment argued mainly from the standpoint of judicial efficiency.  Some of the most vocal critics came from the Ninth Circuit, where heavy caseloads make the use of unpublished decisions widespread.  In a 22-page letter to the Committee, Judge Alex Kozinski noted that unpublished opinions are often drafted entirely by law clerks or staff attor­neys.  He argued that if parties were allowed to cite unpublished opinions, judges would need to spend significantly more time drafting and editing them, which would take time away from the important cases that justify publication.  “Given the press of our cases, especially screening cases, we simply do not have the time to shape and edit unpublished dispositions to make them safe as precedent,” he wrote.

The new rule does not completely resolve the controversy surrounding unpublished decisions.  For starters, some will surely question why the rule applies only to decisions issued on or after January 1, 2007.  This limitation was reportedly added as a compromise to secure passage of the rule.  However, there is no logical basis for distinguishing between opinions issued before January 1, 2007, and those issued after.  Courts and attorneys will also likely find the limitation confusing in practice, since unpublished opinions issued before the cutoff will continue to be governed by the local rules of each circuit.6

Another area of continuing controversy relates to courts’ ability to designate unpublished opinions as non-precedential. Some argue that this practice violates Article III, and at least one federal court has so held. In Anastasoff v. United States, the Eighth Circuit held, in an opinion by the late Judge Richard Arnold, that federal courts have no constitutional authority to decide which of their decisions are precedential and which are not.7  As the court saw it, “Inherent in every judicial decision is a declaration and interpretation of a general principle or rule of law.  This declaration of law is authoritative to the extent necessary for the decision, and must be applied in subsequent cases to similarly situated parties.”8  The court believed these principles were inconsistent with allowing courts to designate decisions as non-precedential: “At bottom, rules like our Rule 28A(i) assert that courts have the following power: to choose for themselves, from among all the cases they decide, those that they will follow in the future, and those that they need not. . . . [S]uch a statement exceeds the judicial power, which is based on reason, not fiat.”9

The source of the Eighth Circuit’s criticism in Anastasoff is not addressed by the amendment to Rule 32.1.  As the Commit­tee Notes explain, the Rule “addresses only the citation of federal judicial dispositions that have been designated as ‘unpublished’ or ‘non-precedential.’ . . . It says nothing about what effect a court must give to one of its unpublished opinions or to the unpublished opinions of another court.”10  Thus, while courts can no longer ban the citation of unpublished decisions, they can continue to treat them as non-precedential.  It remains to be seen what course each of the circuits will take on this issue.  Assuming some or all of the circuits continue to treat the de­cisions as non-precedential, this part of the debate will likely continue.

Finally, the change to the federal rules will likely reignite debate of no-citation rules at the state level.  A number of states—Michigan excluded11—have rules banning the citation of un­published decisions.  As at the federal level, these rules are highly controversial, and have been frequently revisited by legislatures and rules committees agonizing over whether to change them.  A change at the federal level could well be influential in finally bringing about change in these states.

Endnotes

¹ Joe Kuiper is a partner at Warner Norcross & Judd LLP, where he focuses his practice on trial and appellate litigation.

² See Statistics Div., Admin. Office of the U.S. Courts, 2005 Annual Report of the Director: Judicial Business of the United States Courts, 42 tbl. S-3 (2005).

³ See id.

⁴ See id.

⁵ See 6 Cir. R. 28(g) (“Citation of unpublished decisions in briefs and oral argu­ments in this Court and in the district courts within this Circuit is disfavored, except for the purpose of establishing res judicata, estoppel, or the law of the case.  If a party believes, nevertheless, that an unpublished disposition has precedential value in relation to a material issue in a case, and that there is no published opinion that would serve as well, such decision may be cited if that party serves a copy thereof on all other parties in the case and on this Court.”).

⁶ See Judicial Conf. of the United States, Committee on Rules of Practice and Procedure, Committee Notes to Fed. R. App. P. 32.1.

⁷ See 223 F.3d 898, vacated as moot on other grounds 235 F.3d 1054 (8th Cir. 2000).

⁸ Id. at 899-900.

⁹ Id. at 904.  The decision in Anastasoff was vacated as moot by the Eighth Circuit on other grounds, and is therefore no longer binding in that Circuit.  See 235 F.3d 1054 (8th Cir. 2000).  Additionally, at least two federal courts have declined to follow Anastasoff.  See Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001); Symbol Technologies, Inc. v. Lemelson Medical, 277 F.3d 1361 (Fed. Cir. 2002).

¹⁰ Judicial Conf. of the United States, Committee on Rules of Practice and Pro­cedure, Committee Notes to Fed. R. App. P. 32.1 (emphasis in original).

¹¹ Michigan permits citation of unpublished decisions, but only for persuasive value.  See Michigan Court Rule 7.215(C)(1) (“An unpublished opinion is not precedentially binding under the rule of stare decisis.  A party who cites an unpublished opinion must provide a copy of the opinion to the court and to opposing parties . . . . ”).

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CAL sponsored an informative program at the ABA's Annual Meeting in Hawaii titled "Everyone Has An Opinion:  Valuing Persuasive Authority From Outside the Jurisdiction."  The program featured a distinguished panel that included the Honorable Martha C. Warner (Florida Fourth District Court of Appeal), the Honorable Consuelo Maria Callahan (U.S. Court of Appeals for the 9th Circuit), the Honorable Ming W. Chin (California Supreme Court), the Honorable Ronald Lee Gilman (U.S. Court of Appeals for the Sixth Circuit), the Honorable Ruth V. McGregor (Arizona Supreme Court), the Honorable Craig H. Nakamura (Hawaii Intermediate Court of Appeals).  For a selected bibliography of works, or to view photos from the annual meeting, please use the following links:

Bibliography of Works
Photo one from annual meeting
Photo two from annual meeting