Council of Appellate Lawyers

The past several decades have seen an explosion in the number of amicus curiae filings in the United States Supreme Court.  To examine the impact of those briefs and how an effective amicus curiae strategy should be developed, Mary Massaron Ross, Chair of Plunkett & Cooney’s appellate practice and Chair of the ABA’s Standing Committee on Amicus Curiae Briefs, moderated a fascinating panel discussion at CAL’s Dallas conference, featuring perspectives on these issues from academia, the bench, and the bar.

Professor Thomas W. Merrill, professor at Columbia Law School and one of the foremost experts on the impact of amicus curiae briefs on United Supreme Court outcomes, discussed the empirical research he and his colleagues have undertaken in this area.  He began by noting the dramatic increase in U.S. Supreme Court amicus filings, which jumped significantly every decade from 1946 through 1995:

Years     1946-1955 1956-1965 1966-1975 1976-1985 1986-1995

% of Cases with an Amicus Brief 23.45% 33.28% 54.38% 73.41% 85.10%

Interestingly, however, the impact on outcome is relatively small:  there is virtually no statistically meaningful impact on petitioner win rates, and only a slightly more than 7% favorable impact on respondent win rates.  As might be expected, those percentages rise quickly when it is the Solicitor General who appears as the supporting amicus, boosting petitioner win rates more than 16%, and respondent win rates by more than 25%.  Changes in win rates are substantially less pronounced when common amicus filers such as the ACLU and the AFL-CIO participated.  Amicus filings by states (where no state filed an amicus on the opposite side) achieved small but statistically significant success.

When the government is not participating in a case as an amicus, disparity in filings (i.e., where one side has amicus support and the other does not) can also have an effect on outcome.  In such cases, a 1-0 disparity in favor of the petitioner increased win rates more than 6%, a 2-0 disparity in favor of petitioner increased win rates nearly 19%, and a greater than 2-0 disparity increased win rates approximately 8.5%.  The latter figure may represent the decreasing influence as more amici briefs are filed, or may simply reflect a smaller sample size.  The numbers are even more striking when the disparity favors the respondent.  There, a 1-0 disparity increases win rate more than 14%, a 2-0 disparity nearly 24%, and a greater than 2-0 disparity a statistically insignificant 0.23%.

The next panelist was Marvin Krislov, Vice President and General Counsel for the University of Michigan.  He discussed the role of U.S. Supreme Court amici filings in the University’s admissions cases, noting the importance that amici try to bring something new to the table.  More amici curiae briefs were filed in the admissions cases than in any previous case in U.S. Supreme Court history, so it was difficult to make any one brief stand out.  The one amicus brief that generated the most attention (including a 20-minute discussion at oral argument) came from an unexpected source—the U.S. military.  A collection of decorated former generals and former military institute directors discussed in their brief how the military used very similar criteria as the University in selecting their own recruits.  In the face of this brief, it was difficult for the government to argue that diversity was not a compelling interest (particularly where the government had taken the exact opposite view in the trial court).  Mr. Krislov opined that this view had a significant impact on the Justices and the outcome.

The Honorable Diana Jane Gribbon Motz, a judge on the U.S. Court of Appeals for the Fourth Circuit, then stepped to the podium to discuss what courts look for in amici filings.  First and foremost, she said, the courts want a brief that complies with the rules and basic grammar and spelling.  She is surprised how many briefs (amici and otherwise) fail to meet this most basic standard.  Judge Motz echoed Professor Merrill’s statistical proof that government amici are generally taken the most seriously, and she criticized “me too” amici briefs that merely restate the position of one of the parties.  She urged counsel to focus on new angles or unique perspectives, and closed by noting that the Fourth Circuit cited an amicus brief in an opinion in 27 separate cases over the last five years, signifying the impact such briefs can have on a case.

The final speaker was U.S. Supreme Court advocate Tom Goldstein, who observed that amici briefs have become so commonplace in the Court’s docket that the clerks may think something is wrong when a party appears without amici support.  He said that amici briefs can set a case apart from the crowd, particularly at the certiorari stage, and that it is important to be sure each amici brief says something noteworthy.  The easiest way to bring such perspective is to have a client talk about what it knows.  For example, in one case involving the airlines, a stewardess association wrote about safety features, a perspective the parties lacked and one that was helpful to resolving the key issues in the case.  Unique perspectives also arise whenever an amicus party appears and advocates for an unexpected side or position.

Mr. Goldstein concluded by observing that the Court will not usually hold amici parties to the record evidence, or even to evidence supported by citation to some other authority.  Simply writing about client “experience,” without cites, can make a very effective brief.  He noted that the Supreme Court clerks like context for esoteric legal questions, and thus welcome genuine “friend of the court” briefs filed by prominent academics in the field.  In sum, the best amici briefs present truly objective views, rather than biased ones.

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* John J. Bursch is a partner at Warner Norcross & Judd LLP, where he chairs the firm’s Appellate Practice Group.  A former Eighth Circuit law clerk, he has appeared on behalf of appellants, appellees, and amici curiae in appellate courts across the country, including the U.S. Supreme Court.  Mr. Bursch is a member of CAL’s Executive Committee and chairs the Publication Committee.  He can be contacted by telephone at 616.752.2474, by e-mail at jbursch@wnj.com, or through the firm’s website at www.wnj.com.

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Panel:
Julia F. Pendery (moderator)
Hon. Philip A. Talmadge
Rachel Helyar
James Layton
Leane Capps Medford

On Friday afternoon, attendees were treated to a sophisticated discussion by experienced appellate lawyers about how to handle a huge trial record on appeal.

Rachel Helyar first emphasized the need to confirm that the advocate has all the materials filed with the court.  When that is confirmed, the documents can be indexed while trial briefs are being read.  Then issues determined from reading the trial briefs can be used to summarize the indexed documents.  Helyar uses a Dictaphone to abstract the transcript, and she prefers to use key terms that can later be searched in the abstract.

Leane Medford’s goal is to read everything only once.  Thus, she lists topics for each volume of the transcript and the exhibits.  A paralegal creates a chart for exhibits, noting details surrounding their offers, objections, and limitations—as well as who authored the exhibits and who might have seen them.  She adds notes about how to use an exhibit on appeal—for instance, as background information, as a critical document to highlight in her brief, as a duplicate exhibit to be ignored, or as a document to revisit later.  Thus, she can sort the exhibits chronologically or by who viewed them.  This helps especially with arguing inferences to support a verdict.  For the clerk’s record, Medford has a paralegal chart whether a particular document was designated or not, and then an attorney notes its importance and summarizes it.  For the transcript, Medford prefers to use a sophisticated software system, called Visionary.  The transcript is scanned into the database and then hyperlinked to exhibits.  The system allows her to create “Issue Builders,” which in turn can become an outline of the brief complete with record materials.

Jim Layton focused on how to cut a big record down to a manageable size.  He tries to determine what he really needs from the record, in other words, how much of it he must master given the issues on appeal.  Important are how the court deals with the record and the nature of the record.  His first goal is to trim the issues as much as possible, which will automatically reduce the amount of the record he must master.  Layton particularly recommended analytical sessions before writing the brief, in order to determine what questions about the record others might have.

Phil Talmadge’s goal in preparing an appellate record is to help the decision makers decide whatever it is that they need to decide.  He relied on his experience as a supreme court justice and appellate lawyer to share some practical tips.  One is that many courts are not well-equipped to handle e-briefs.  He noted generational problems in the judiciary that may be solved by the passage of time.  He also urged the bar to educate judicial and legislative bodies about the advantages of electronic filing.

Introduction
One of the recurring issues faced by attorneys is the scope of appellate review for issues that were not addressed by the lower court. The general rule is that any such issue is not preserved, or is “waived,” for purposes of appeal. This rule is very broad, applying in situations that may be surprising to some, but is also subject to a number of exceptions. This article provides an overview of the waiver rule and the exceptions applied by state and federal appellate courts. Understanding these rules and exceptions gives appellate attorneys an increased chance of persuading a court to take up, or pass over, an issue that was not addressed below.

Background
It is often noted that a court of appeals may affirm a lower court’s decision on “any grounds supported by the record.² Despite this broad power, as a general rule state and federal courts will decline to reach issues that were not preserved for appeal.³; In practice, this rule can take two forms. First, a party may waive an issue by failing to raise it in the lower court.⁴ Second, even if the party raised the issue below, courts hold that the issue is not preserved unless it was actually decided by the lower court.⁵ If the lower court decided the case on different grounds and did not reach one or more of the issues raised by the parties, those issues are not preserved.⁶ Thus, an issue is preserved for appeal only if it was both “raised before, and addressed and decided by, the trial court.”⁷

The rule against raising new issues on appeal is “deeply embedded in our jurisprudence.”⁸ The Supreme Court has described the rule as “essential in order that parties may have the opportunity to offer all the evidence they believe relevant to the issues and in order that litigants may not be surprised on appeal by final decision there of issues upon which they have had no opportunity to introduce evidence.”⁹ The rule is also justified by practical concerns for judicial economy, the orderly conduct of litigation, and the desire to provide appellate courts with the benefit of lower courts’ analysis.¹⁰

The waiver rule applies to nearly any type of issue on appeal, including constitutional questions.¹¹ In one case, for example, the Michigan Supreme Court declined to consider a party’s due process and equal protection arguments since those arguments had not been decided below.¹² Other courts have done the same when faced with a variety of constitutional questions.¹³ The only issues that fall outside the scope of the waiver rule are jurisdictional issues like standing,¹⁴ sovereign immunity,¹⁵ and subject-matter jurisdiction,¹⁶ which can be raised by the court or the parties at any stage of the proceedings.

The waiver rule also applies regardless of whether the party raising the issue is the appellant or the appellee. Although an appellee may assert on appeal any argument in support of affirming the lower court’s decision,¹⁷ this does not entitle the appellee to raise entirely new arguments. Instead, courts hold that any issue raised by the appellee is waived unless it was at least asserted in the lower court.¹⁸ As the Fourth Circuit has explained: “While . . . we may affirm judgments on alternative grounds to those relied upon by a lower court, this contemplates that the alternative ground shall first have been advanced in that court, whether or not there decided.”¹⁹ Thus, although an appellee can generally raise any issue in support of affirmance of a judgment, any such issue must at least have been raised below or it is waived for purposes of appeal.

Exceptions
Despite the policies underlying the waiver rule, courts recognize that the rule is merely one of “orderly judicial administration” and is not jurisdictional.²⁰ Courts have discretion to deviate from the rule when the circumstances of a case demand it. In the Supreme Court’s words: “The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases.”²¹ This discretion stems from the “historical powers of equity vested in courts ‘to prevent manifest injustice and to promote judicial efficiency.’”²²

Following the Supreme Court’s lead, state and federal appellate courts uniformly recognize their power to consider issues that were not properly preserved.²³ Some courts state that they will reach such an issue when faced with “exceptional circumstances” or when necessary to prevent “manifest injustice.”²⁴ Others have articulated standards for deciding whether to take up an issue raised for the first time on appeal.²⁵ The test articulated by the Sixth Circuit is typical of that followed in many jurisdictions: “(1) whether the issue newly raised on appeal is a question of law, or whether it requires or necessitates a determination of facts; (2) whether the proper resolution of the new issue is clear and beyond doubt; (3) whether failure to take up the issue for the first time on appeal will result in a miscarriage of justice or a denial of substantial justice; (4) the parties’ right under our judicial system to have the issues in their suit considered by both a district judge and an appellate court.”²⁶

In theory, exceptions to the waiver rule are intended to be narrow and rarely applied.²⁷ In practice, however, appellate courts often consider issues that were not passed upon by a lower court. While the circumstances for such exceptions are diverse, the case law reveals several recurring factors that courts find most significant. The following sections address each of those factors in turn.

Question of Law

By far the most important factor weighing in favor of review is where an issue is a pure question of law.²⁸ Where a court is called upon to interpret a statute, a constitution, or a contract, the primary justification for the waiver rule—to permit parties to introduce evidence in support of their claims—is absent or significantly diminished. Courts regularly consider such issues for the first time on appeal. In one case out of the Ninth Circuit, for example, the court decided to take up a party’s newly raised argument about the alleged preemption of a city ordinance, because the court found the issue to be “essentially legal in nature.”²⁹ Applying the same reasoning, courts have taken up a wide variety of otherwise waived issues on appeal, including the interpretation of a tax statute,³⁰ the enforceability of a forum selection clause,³¹ a facial challenge to the constitutionality of a statute,³² and the intended scope of Title VII’s retaliation provisions.³³

Issue of First Impression

A court’s likelihood of reviewing a pure legal issue is even greater where the issue is one of first impression.³⁴ In these cases, the value gained from clarifying a novel question can sometimes outweigh the interests sought to be promoted by the waiver rule. For example, the First Circuit once agreed to consider an issue raised by the government for the first time on appeal because it involved the interpretation of a criminal statute that would almost certainly be encountered in future cases.³⁵ The court found that refusing to reach the issue would “neither promote judicial economy, nor aid the administration of the criminal justice system.” As this shows, to the extent a pure legal issue is also one of first impression, a court may find that fact persuasive in deciding whether to consider the issue for the first time on appeal.

No Further Factual Development Required
Courts are also more likely to review a newly raised issue where it can be determined without further factual development.³⁶ This can occur where the issue “either does not affect or rely upon the factual record developed by the parties or the pertinent record has been fully developed.”³⁷ In one case, for example, the Eleventh Circuit rejected the grounds relied upon by the lower court and went on to consider alternative arguments raised by the defendant, reasoning that “[t]he voluminous record in this case more than adequately sets forth the factual and legal grounds for the parties’ arguments . . . .”³⁸ In a case like this, where there is little risk of impinging on the trial court’s role as finder of facts, an appellate court is much more likely to take up an issue for the first time on appeal.

Resolution Clear Beyond Doubt

An additional factor favoring review of a newly raised issue is where the proper outcome of the issue is clear beyond doubt.³⁹ This is because an appellate court is not likely to benefit from having the lower court’s analysis of such an issue.⁴⁰ In one case, for example, the First Circuit decided to take up an issue that was not properly preserved because, “[g]iven the compelling nature of the government’s argument, preliminary examination of this legal issue by the trial court would not benefit either the court or the parties appreciably.”⁴¹ Courts recognize that most pure legal issues fit into this category, since they typically involve the interpretation of a statute, constitution, or contract, all of which are well within the expertise of an appellate court.⁴²

On the other hand, where the outcome of an issue of law is not clear, a court is far less likely to consider it when raised for the first time on appeal.⁴³ Courts have declined to consider such issues, for example, where both parties’ readings of the disputed statute were “superficially plausible,”⁴⁴ or where it was not clear how the issue should be resolved under applicable state law.⁴⁵ As these cases demonstrate, this factor can cut both ways. Where the outcome of a newly raised issue of law is unclear, a court may well decline to reach it.

Public Interest

Finally, appellate courts also appear more inclined to overlook a waiver when there is a strong public interest at stake.⁴⁶ In these cases, the presence of some unique factor contributes to the court’s willingness to consider it for the first time on appeal. For example, the Sixth Circuit once agreed to consider arguments raised by a plaintiff for the first time on appeal in a challenge to his civil commitment, noting the “significance of [the] liberty interest at stake.”⁴⁷ In another case, the First Circuit granted review of a Speedy Trial Act issue raised by the government, finding that “[b]oth the government and the public have a legitimate and significant interest in prosecuting suspected criminals . . . .”⁴⁸ Although most cases do not involve incarceration or similar circumstances, there may be other public interests at stake that could be brought to the court’s attention. While the existence of such an interest may not be dispositive, it will at least add to the balance as the court considers whether to review the otherwise waived argument on appeal.

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¹ Joe Kuiper is a partner with Warner Norcross & Judd LLP, where he is a member of the firm’s litigation and appellate practice groups. A former federal appellate law clerk, he regularly represents clients in appellate and other matters in Michigan and federal courts. He can be reached at 616-752-2481 or jkuiper@wnj.com. He is grateful to Sarah Riley Howard and Ryan D. Cobb for their helpful research assistance.

² See, e.g., United States ex rel. Sean Bledsoe v. Cmty. Health Sys., Inc., 342 F.3d 634, 651 (6th Cir. 2003).

³ See Singleton v. Wulff, 428 U.S. 106, 120 (1976); Cmty. Health, 342 F.3d at 634; Martinez v. Dep’t of Crim. Just., 300 F.3d 567, 573 (5th Cir. 2002); Booth Newspapers, Inc. v. Board of Regents, 444 Mich. 211, 234 (1993).

⁴ See, e.g., Reich v. Stewart, 121 F.3d 400, 407 (8th Cir. 1997); Michigan Millers Mut. Ins. Co. v. West Mich. Health Care Net., 174 Mich. App. 196, 199 (1989).

⁵ See Perez v. Aetna Life Ins. Co., 150 F.3d 550, 554-55 (6th Cir. 1998) (en banc); Kubicko v. Ogden Logistics Servs., 181 F.3d 544, 555 n.9 (4th Cir. 1999); D’Avanzo v. Wise & Marsac, P.C., 223 Mich. App. 314, 325-26 (1997).

⁶ See, e.g., Perez, 150 F.3d at 554-55.

⁷ Hines v. Volkswagen, 265 Mich. App. 432, 443 (2005).

⁸ National Ass’n of Soc. Workers v. Harwood, 69 F.3d 622, 627 (1st Cir. 1995).

⁹ Singleton, 428 U.S. at 120.

¹⁰ See Town & Country Dodge, Inc. v. Dep’t of Treas., 118 Mich. App. 778, 789-90 (1982); Ross v. Hotel Employees & Rest. Employees Int’l Union, 266 F.3d 236, 242-43 (3d Cir. 2001); Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 740 (D.C. Cir. 1995).

¹¹ See Curtis Publ’g Co. v. Butts, 388 U.S. 130, 143 (1967) (“[E]ven constitutional objections may be waived by a failure to raise them at a proper time.”).

¹² See Butcher v. Dep’t of Treas., 425 Mich. 262, 276 (1986).

¹³ See, e.g., Peachlum v. City of York, 333 F.3d 429, 439-40 (3d Cir. 2003); Giordano v. City of New York, 274 F.3d 740, 752 (2d Cir. 2001); Nelson v. City of Irvine, 143 F.3d 1196, 1205-06 (9th Cir. 1998); Booth Newspapers, 444 Mich. at 234 n.23.

¹⁴ See Lewis v. Casey, 518 U.S. 343, 349 n.1 (1996) (“[S]tanding . . . is jurisdictional and not subject to waiver”); Michigan Chiropractic Council v. Comm’r of Office of Fin. & Ins. Servs., 475 Mich. 363, 371-72 (2006) (same).

¹⁵ See Edelman v. Jordan, 415 U.S. 651, 677-78 (1974).

¹⁶ See Insurance Corp. v. Compagnie des Bauxites, 456 U.S. 694, 701-03 (1982); Dep’t of Nat’l Res. v. Carmody-Lahti Real Estate, Inc., 472 Mich. 359, 389 n.64 (2005).

¹⁷ In the Supreme Court’s words: “The prevailing party may . . . assert in a reviewing court any ground in support of his judgment, whether or not that ground was relied upon or even considered by the trial court.” Dandridge v. Williams, 397 U.S. 471, 475 n.6 (1970) (citations omitted).

¹⁸ See Mudge v. Macomb County, 458 Mich. 87, 109 (1998) (refusing to consider argument raised by appellee for first time on appeal). Some courts take the matter a step further and hold that the issue is waived unless it was also addressed by the lower court. See, e.g., Perez, 150 F.3d at 554-55 (declining to consider collateral estoppel argument raised by appellee below but not reached by trial court); McKelvie v. Mount Clemens, 193 Mich. App. 81, 86 (1992) (same).

¹⁹ Skipper v. French, 130 F.3d 603, 610 (4th Cir. 1997).

²⁰ Alexander v. Aero Lodge, 565 F.2d 1364, 1370 (6th Cir. 1977); accord Loper v. Cascade Twp., 135 Mich. App. 106, 111 (1984).

²¹ See Singleton, 428 U.S. at 121. The Court “announce[d] no general rule” for when this discretion should be exercised. See id.

²² Brown v. Crowe, 963 F.2d 895, 898 (6th Cir. 1992).

²³ See, e.g., Ross, 266 F.3d at 243; J.C. v. Reg’l School Dist. 10, 278 F.3d 119, 125 (2d Cir. 2002); Petrini v. Howard, 918 F.2d 1482, 1483 n.4 (11th Cir. 1990); United States v. Krynicki, 689 F.2d 289, 291 (1st Cir. 1982); Aero Lodge, 565 F.2d at 1370; Booth Newspapers, 444 Mich. at 234 n.23.

²⁴ See, e.g., First Bank Investors’ Trust v. Tarkio Coll., 129 F.3d 471, 477 (8th Cir. 1997); Bines v. Kulaylat, 215 F.3d 381, 385 (3d Cir. 2000); Burns v. City of Detroit, 253 Mich. App. 608, 615 (2002); Gubin v. Lodisev, 197 Mich. App. 84, 86 (1993).

²⁵ See, e.g., Friendly Farms v. Reliance Ins. Co., 79 F.3d 541, 545 (6th Cir. 1996); Harwood, 69 F.3d at 625-29; Petrini, 918 F.2d at 1483 n.4.

²⁶ Friendly Farms, 79 F.3d at 545.

²⁷ See Chao v. Hall Holding Co., 285 F.3d 415, 427 (6th Cir. 2002).

²⁸ See Council of Alternative Political Parties v. Hooks, 179 F.3d 64, 69 (3d Cir. 1999); D’Avanzo, 223 Mich. App. at 326; Candelaria v. B.C. Gen’l Contractors, Inc., 236 Mich. App. 67, 83 (1999); Loper, 135 Mich. App. at 111.

²⁹ See City of Auburn v. Qwest Corp., 260 F.3d 1160, 1172-73 (9th Cir. 2001).

³⁰ See Black Motor Co. v. Comm’r of Internal Revenue, 125 F.2d 977 (6th Cir. 1942).

³¹ See AAR Int’l, Inc. v. Nemelias Ent. S.A., 250 F.3d 510, 527 (7th Cir. 2001).

³² See United States v. Bynum, 327 F.3d 986, 990 (9th Cir. 2003).

³³ See Twisdale v. Snow, 325 F.3d 950, 952 (7th Cir. 2003).

³⁴ See, e.g., Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1099 n.8 (1991); Ross, 266 F.3d at 243; Creel v. Johnson, 162 F.3d 385, 390 n.3 (5th Cir. 1998); Brown, 963 F.2d at 898; Roosevelt v. E.I. Du Pont De Nemours & Co., 958 F.2d 416, 419 (D.C. Cir. 1992).

³⁵ See Krynicki, 689 F.2d at 291-92.

³⁶ See, e.g., City of Auburn, 260 F.3d at 1172-73; Krynicki, 689 F.2d at 291-92; United States v. La Guardia, 902 F.2d 1010, 1013 (1st Cir. 1990); Dep’t of Labor v. Rapid Roberts, Inc., 130 F.3d 345, 348 (8th Cir. 1997); Westfield Cos. v. Grand Valley Health Plan, 224 Mich. App. 385, 387 (1997); Michigan Millers, 174 Mich. App. at 198-99.

³⁷ Maghsoudi, 181 F.3d at 13 n.11.

³⁸ De Perez v. AT&T Co., et al., 139 F.3d 1368, 1372 n.5 (11th Cir. 1998).

³⁹ See, e.g., United States v. Chavez, 281 F.3d 479, 486 (5th Cir. 2002); J.C. v. Reg’l Sch. Dist. 10, 278 F.3d 119, 125 (2d Cir. 2002); La Guardia, 902 F.2d at 1013.

⁴⁰ See Krynicki, 689 F.2d at 291-92.

⁴¹ Id.

⁴² See Unsecured Creditors of Color Tile v. Coopers & Lybrand, LLP, 322 F.3d 147, 159-61 (2d Cir. 2003).

⁴³ See, e.g., Perez, 150 F.3d at 555; Correa v. Hospital San Francisco, 69 F.3d 1184, 1196 (1st Cir. 1995); Color Tile, 322 F.3d at 159-61; Taft Broadcasting Co. v. United States, 929 F.2d 240, 245 (6th Cir. 1991); Candelaria, 236 Mich. App. at 83.

⁴⁴ Correa, 69 F.3d at 1196.

⁴⁵ See Perez, 150 F.3d at 555.

⁴⁶ See, e.g., United States v. Hardman, 297 F.3d 1116, 1124 (10th Cir. 2002); La Guardia, 902 F.2d at 1013; United States v. Baker, 807 F.2d 1315 (6th Cir. 1986); Krynicki, 698 F.2d at 292.

⁴⁷ Baker, 807 F.2d at 1321.

⁴⁸ Krynicki, 698 F.2d at 292.

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Capital punishment presents many vexing questions to courts and litigants throughout the spectrum of American law. Even the sometimes cloistered world of civil appeals is not exempt from its impact. Inspired by recent experiences with these issues, Christopher McFadden, an appellate lawyer in Georgia, organized and moderated a panel at CAL’s Dallas conference. Although diverse in perspective—the panel included members of the appellate bar, the bench, and the academy—the panel members agreed that capital punishment and the intense litigation it provokes profoundly effects the civil appellate process, placing institutional pressures on courts and civil litigants, exerting political influence over appellate judges, and distorting substantive law in the civil arena.

1. The Institutional Impact

Perhaps the most notable impact of capital litigation on civil appeals—and, because death penalty issues are appealed in the same fora as civil matters, probably the most visible impact to the average practitioner—is the institutional pressures it places on courts and judges to resolve a litany of sometimes profound, but often perfunctory, issues before the government enforces its severest penalty.

Justice Andrew Hurwitz of the Arizona Supreme Court explained that one institutional impact of capital litigation is that capital litigation often crowds out civil appeals. In Justice Hurtwitz’s view, capital litigation prevents judges from spending the time required to resolve complex civil appeals adequately and forces judges to more cautiously decide whether to accept discretionary appeals.

Bryan Stevenson, a professor at New York University School of Law and the Executive Director of the Equal Justice Initiative of Alabama, echoed Justice Hurwitz’s comments. Capital punishment litigation takes space on courts’ dockets and sometimes places time requirements for resolving the appeal. Professor Stevension explained that, due to lack of funding for appointed attorneys, many capital appeals are handled pro se or with counsel inexperienced in criminal appeals, requiring the judge to be not only a judge, but also an advocate to identify and to explore the issues fully on appeal.

Professor Erwin Chemerinsky of Duke Law School also noted that the stringent issue preservation requirements in capital litigation force appellate counsel to brief all issues in state court to preserve those issues for habeas review. Such a rule, although necessary in other substantive areas, effectively wastes scarce judicial resources by requiring judges to review a wide array of issues that should not be raised in an appellate court.

2. The Political Impact

The panelists also explored the varied political impacts capital punishment has had on the civil appellate process and, most disturbingly, on the political independence of appellate judges. Professor Stevenson noted that judges in many states stand for election and, due to the issue’s politically charged nature, voters may vote against a judge who resolved a capital case the politically “wrong” way.

The one jurist on the panel agreed that capital litigation has a substantial political impact on judges, and noted that it also has a profound effect on the way judges resolve cases. In Judge Hurwitz’s view, judges too often take the easy way out of difficult capital punishment questions by purporting to rely on the record and resolving easy evidentiary or instructional issues without confronting the life or death issue under the legalist façade. Professor Chemerinsky echoed Justice Hurwitz’s comments, arguing that, in many cases, judges avoid their constitutional responsibilities by, for example, affirming capital cases in the face of serious deficiencies because there was no prejudice to the defendant. Both Justice Hurwitz and Professor Chemerinsky believed that these issues affected the way appellate judges treated cases outside capital litigation.

3. The Substantive Spillover

Third, capital punishment litigation in the criminal arena has spilled over to distort substantive civil law and practice. Ann Fort, an attorney at Sutherland Asbill & Brennan LLP, addressed the substantive spillover effects of capital punishment habeas corpus litigation in civil appeals involving prisoners. Ms. Fort, who recently handled a death penalty appeal as appointed counsel, provided a thorough examination of recent cases dealing with the exhaustion requirement and successive habeas petitions. Professor Chemerinsky also saw capital litigation’s impact in the widespread desensitization to human life, which could easily carry over to the ways judges and juries approach other areas such as when they award or approve of civil damages.

Professor Stevenson echoed his fellow panelists’ theses from a mirrored perspective, arguing that judges in capital punishment cases arrive at absurd results by too often treating them like civil appeals. For example, Mr. Stevenson noted, recent courts have held that an individual’s right to counsel was not violated when defense counsel slept through the trial or held that an appeal was untimely because the notice of appeal was filed one day late. These substantive results, in Mr. Stevenson’s view, derive from judges translating the mantra “death is different” as license to review death penalty cases with less emphasis on careful adjudication and equity.

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*Winston E. Calvert is an attorney at Armstrong Teasdale LLP. A member of the appellate practice group, he handles post-trial motions, amicus curiae briefs, and interlocutory appeals in state and federal appellate courts. He can be contacted by telephone at 314.259.4752, by e-mail at wcalvert@armstrongteasdale.com, or through the firm’s website at http://www.armstrongteasdale.com.

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At the November 9-11, 2006 Council of Appellate Lawyers Summit in Dallas, TX, attendees learned about recent legal issues in intellectual property from three presenters. 

First, Professor Xuan-Thao Nguyen of the SMU Dedman School of Law gave a presentation titled “Surfing the Internet and the Law in 2006.”  Professor Nguyen discussed recent issues regarding enforceability of contracts entered into by clicking on buttons displayed in an Internet browser.  In this context, the terms “click wrap” and “browse wrap” are pertinent.  Click wrap refers to a contract that requires a viewer to manifest agreement by clicking on a button.  Professor Nguyen pointed out that, generally, these types of contracts are enforceable.  In contrast, browse wrap refers to a contract where the viewer will be unable to see some terms without scrolling to a different page.  Professor Nguyen explained that these contracts may or may not be enforceable, depending on the specific facts. 

For example, in Barnett v. Network Solutions, 38 S.W.3d 200 (Tex. Ct. App. 2001), the court held that a contract was enforceable even though the viewer was required to scroll through the entire printed contract in order to accept its provisions and obtain the service being offered.  In contrast, in Specht v. Netscape Communications Corp., 306 F.3d 17 (2nd Cir. 2002), the court held that a contract was not enforceable where the viewer was not required to indicate assent to all terms and some terms were below the main screen.

Professor Nguyen also discussed personal jurisdiction in the context of Internet websites.  She explained that one case, Zippo Manufacturing Co. v. Zippo Dot Com, 952 F. Supp. 1119 (W.D. Pa. 1997), had been widely adopted as establishing a sliding scale for determining whether operation of a website in one state gives rise to personal jurisdiction in another.  At one end of the spectrum, there are situations where a defendant clearly does business over the Internet by entering into contracts with residents of other states that “involve the knowing and repeated transmission of computer files over the Internet.”   In that situation, personal jurisdiction is proper.   At the other end of the spectrum, there are situations where a defendant merely establishes a passive website that does nothing more than advertise on the Internet.   With passive websites, personal jurisdiction is not appropriate.  In the middle of the spectrum, there are situations where a defendant has a website that allows a user to exchange information with a host computer.   In this middle ground, “the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.”  As an example of the application of the Zippo factors, Professor Nguyen cited Quality Design and Construction v. Tuff Coat Manufacturing, 939 S.2d 429 (La. Ct. App. 2006).  In Quality Design, the court held that Louisiana could not exercise jurisdiction over a Colorado company that operated a website that permitted viewers to obtain information about its products and invited viewers to make purchases by phone or mail, but which did not permit viewers to make purchases through the site.

The second lecturer was Professor Shubha Ghosh, also of the SMU Dedman School of Law.  Professor Ghosh’s presentation was titled “A Bend in the River?  Intellectual Property and the Supreme Court’s 2005-2006 Term.”  Professor Ghosh discussed four Supreme Court cases decided during the Court’s last Term.  In Unitherm Food Services v. Conagra Refrigerated Foods, 126 S. Ct. 980 (2006), a case having more to do with civil procedure than intellectual property, the Court held that the plaintiff, a patent owner suing for antitrust violations, could not get a new trial from a court of appeals on the ground of insufficient evidence, because the plaintiff had not moved the district court for a directed verdict and judgment notwithstanding the verdict on that ground.  In Illinois Tool Works v. Independent Ink, 126 S. Ct. 1281 (2006), the Court held that mere ownership of a patent does not mean that the owner presumptively has market power for the purpose of determining whether a tying arrangement is unlawful.  In Laboratory Corp. v. Metabolite Labs, the Court granted certiorari to decide the novel issue whether a diagnostic test to detect Vitamin B deficiencies was non-patentable because it was a phenomenon of nature.  However, the Court dismissed the petition as improvidently granted without reaching the merits.

The case with perhaps the most far-reaching implications to the intellectual property field was eBay v. MercExchange, 126 S. Ct. 1837 (2006).  In eBay, the Court held that a permanent injunction is not mandatory upon a finding of patent infringement, but instead district courts must apply the traditional equitable factors for issuance of injunctive relief.  According to Professor Ghosh, because the threat of an automatic injunction was a powerful weapon for plaintiffs alleging patent infringement, the practical effect of the ruling was to take away some settlement leverage from such plaintiffs.

Finally, the session concluded with a presentation by Kristin J. Achterhof, of Katten Muchin Rosenman LLP.  Ms. Achterhof explained that likelihood of confusion is all that is required to establish liability for trademark infringement.  However, the Supreme Court held in Moseley v. V Secret Catalogue, 537 U.S. 418 (2003), that to prevail on a federal trademark dilution claim, the plaintiff must show actual dilution by objective proof of actual injury to the economic value of the mark. 

Ms. Achterhof then discussed her trade dilution case involving the mark “FUBU”—which stands for “For Us By Us”—under which apparel is marketed.  FUBU brought a trade dilution claim against the makers of the movie “How High,” described be the court as “a satirical ‘stoner comedy’ about the ridiculous, fictional antics and adventures of two African-American youths…who, following a course of ‘supernatural’ events involving a marijuana plant, find themselves…attending college at Harvard University.”  The characters poked fun at the FUBU name by using the made-up name “BUFU” as an acronym for the phrase, “By Us Fuck You,” in reference to one of the main characters’ fictional line of clothing.  The court granted the defendants’ motion for summary judgment on the ground that their use of BUFU was a parody protected by the First Amendment.  The court concluded drolly, “[t]his action, in the judgment of the Court, is ‘UFUB,’” at which point it dropped a footnote explaining, “Utterly Frivolous Under Biopsy.”

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Two distinguished panelists, Honorable Sandra Day O’Connor, former Justice of the United States Supreme Court and Honorable Danny Boggs, Chief of the United States Court of Appeal for the Sixth Circuit, addressed the topic of Fair and Impartial Courts: Differing Polestars - - The Will of the Majority for the Executive and Legislative Branches, and the Constitution and Rule of Law for the Judicial Branch. Honorable Randall Terry Shepard, Chief Justice of the Indiana Supreme Court, moderated the lively discussion that ensued. Each panelist began by providing their initial remarks on the subject.

Justice O’Connor noted that when she retired earlier in 2006 one of her primary concerns was (and still is) judicial independence, both at the state and national level. She described the underlying basis for the creation of our federal courts: Our forefathers' complaints of judicial appointments by the King and subsequent dismissal at the King's will. As a result, under our federal judicial system judges may only be removed for high crimes and misdemeanors and no judge's salary may be lowered during the judge's tenure.

With respect to the state judicial systems, she pointed out that interestingly, many states went to judicial elections (rather than appointment) so the judges would not be beholden to congressional powers. She sees very real problems with state elections for judges, however, citing as a recent example where all the Republican judges in Dallas County, Texas were replaced by Democrat judges in the elections that took place on Tuesday, November 7, 2006. In this regard, she next described her own early work in Arizona where she served as a Republican state senator in the early 70's; then served as an elected judge (Maricopa County Superior Court (1975-79)) and then was appointed to the Arizona Court of Appeals in 1979. In Arizona, she led the initiative to get a proposition on the ballot for judicial appointments and it passed. She believes all states need appointment of judges by a bipartisan committee together with a retention election scheme.

Justice Boggs next gave his initial views on judicial independence, explaining he sees both an "inner" aspect (a judge's internal determinations); and an "outer" aspect (the external influences a judge may encounter) to this issue. As to the "outer" aspect of judicial independence, Justice Boggs specifically noted the very real problem of force or physical threats to judges that has become increasingly prevalent. Justice O'Connor agreed, describing an incident that occurred while she was on the United States Supreme Court. Cookies had been sent to all the justices on the Supreme Court that contained enough poison to kill them. Justice Boggs also noted a second factor of the "outer" aspect of judicial independence - that of outside influence, explaining that was the reason for the "no diminution in pay" clause in the Federal and many State Constitutions.

Justice Shepard next asked both panelists to reflect on "judicial independence as a tool." Justice O’Connor initially remarked that she does not like to rely solely on the term "independent" because it is not widely understood. For that reason, she favors the terms "fair and impartial", recognizing that judicial independence is a tool for deciding cases impartially. Similarly, Justice Boggs explained that judicial independence is a tool for proper decision-making, recognizing that in this sense "independence" does not mean "willful or headstrong", but rather that judges are guided by the Constitution and equal justice under the law.

Justice Shepard noted that both panelists recognized that the word “independent” may not be generally well received by the ordinary citizen. He recognized from their comments that it is important to clarify that an "independent" judiciary is one free from influence in order that the judges can follow the law - - not to allow judges independence in the sense of following their own personal beliefs. Justice O'Connor agreed, noting that a judge does not put on the judicial robe and then apply personal opinions - - a judge takes a solemn oath to apply the law. Justice Boggs, likewise, agreed, stating that a judge does not make the outcome of a case match his or her personal desire.

As a final topic, Justice Sheppard sought the panelists' comments on the portion of the “decision making field” that the judiciary occupies (as compared to the legislative and executive branches). In this regard, Justice Boggs noted that many judicial decisions stem from issues set up by the legislature by passing a statute that is subject to interpretation. In this way, the courts can get rid of a law, while at the same time allow the legislature to go back and "fix" the statutory language. A court's decision, then, is not "overturned" by the new statute, but rather the legislature has revised the new statute based on the judiciary's interpretation. Justice O'Connor agreed wholeheartedly, noting that based on her own experience in the Arizona legislature, she knows bills are sometimes passed knowing it may be unclear and that it will need interpretation. She views this as "a continuing dialog" between the judiciary and legislature, not a final court decision. From this discussion it is clear that both Justice O'Connor and Justice Boggs emphasized the significant interest society has in maintaining judicial independence - - "fairness and impartiality." Judges who are afraid (whether for their jobs or their lives) cannot adequately fulfill the considerable responsibilities that their positions demand.

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An organized, direct and concise brief determines its persuasive value.  In The Five Types of Legal Argument, Professor Wilson Huhn (Carolina Academic Press 2002) delivers a straight-forward way to identify potential legal arguments; evaluate their merit; and challenge the arguments raised by the other side - - all key tools in preparing an effective brief.  For this reason, I've chosen to share with you Professor Huhn's legal analysis model which consistently helps me to better organize my thoughts and insure I have evaluated the potential legal arguments that I may use in my written work. 

Identify the Potential Arguments
According to Professor Huhn's model, there are five types of legal arguments: text, intent, precedent, tradition, and policy analysis.  Id. at 13.  The first step in the analytical process is to identify the possible arguments that may be made. 

           Text.  Typically, the starting point is the legal text itself:  the language used in the document, whether it be the Constitution, a statute, rule, regulation, will or written contract. Professor Huhn describes three possible ways to make a textual argument:  "plain meaning" (is the language so clear on its face it requires no other interpretation?); use of canons of construction; and by intratextual arguments (using one part of the document to give meaning to another part).Id. at 17-29.  These textual methods of interpretation allow the writer to present an objective definition of the text at issue.   Id.
 
           Intent.  A second source of analysis is determining the intent of the people who wrote the text.  For example, explore whether evidence exists of the intent of the drafters of the Constitution, statute or regulation; or the intent of the parties to a contract or of the testator.  Id. at 31-40.

           Precedent.  A third avenue to consider is whether legal precedent exists.  Id. at 41-44. 

           Tradition.  A fourth source of legal authority can be found in the traditions of the American people.  As Professor Huhn explains, this type of argument has been identified by the Supreme Court "as a principal test for determining our fundamental rights" (id. at 45).  It is also used in the law of real property and the custom and trade usage principles underlying the Uniform Commercial Code.  Id. at 47-48. 

           Policy Analysis.  The fifth type of legal argument is policy analysis:  "[a prediction of] the consequences that will flow from giving the law one interpretation or another . . . [followed by an evaluation of] which set of consequences is more consistent with the underlying values of the law."  Id. at 63.

Choose and Create the Relevant Legal Arguments
Having identified the five basic types of legal arguments, the next step is to create the legal arguments.  The most persuasive briefs utilize more than one type of legal argument.   "When the text of a legal rule, the intent of its drafters, judicial precedent, relevant tradition, and policy analysis all militate in favor of a single interpretation of the law, the reasoning seems airtight."  Id. at 87-88. 

Evaluate the Legal Arguments
The writer must next scrutinize the legal arguments for weak points, both his or her own and those made by the opposing party.  Id. at 89.   Professor Huhn describes numerous ways to evaluate the strength (and rebut) legal arguments, demonstrated by the following examples:

As noted above, textual arguments have three basic forms (plain meaning, canons of construction, and intratextual).  Evaluate a "plain meaning" argument by questioning whether a different "plain meaning" can be attributed to the text; or, alternatively, is the text ambiguous, so that the "plain meaning" rule should not apply.  Id. at 96-98.  If a "canon of construction" is relied upon, note that this form of textual analysis may be easily rebutted.  Professor Huhn observes that a number of legal scholars regard these canons with skepticism:  "Karl Llewellyn . . . assembled a list of fifty-six canons of statutory construction, and suggested that for each and every canon of construction there is an equal and opposite canon."  Id. at 100 (citation omitted).  Scrutinize intratextual arguments to determine whether a different textual inference can be drawn from the text as a whole.  Id. at 101-02.

Assess arguments based on "intent" by examining the evidence of intent. Id. at 105-07. For example, if an argument is based upon legislative or administrative history, determine whether previous versions of the text exist that may support (or undermine) the particular interpretation.  Similarly, where a rule of civil procedure or evidence is at issue, or a provision of the Uniform Commercial Code, determine whether support for a particular argument exists in the Advisory Committee Notes or Official Comments, respectively. Id. at 35-39. 

Evaluate arguments based on "precedent" by assessing whether the case really stands for the cited proposition; and determine whether the case still good law or could the "precedent" really be dicta?  Note whether the opinion is issued from a controlling authority; and, of course, examine whether the case is distinguishable on its facts or for policy reasons.  Id. at 111-12.

Analyze arguments based on "tradition" by determining whether a competing or conflicting tradition may also exist.  Id. at 127-29.  Scrutinize policy arguments by questioning whether the stated "policy" is actually one of the purposes of the law at hand and whether, like tradition, the stated policy could be outweighed by a competing policy.  Id. at 131-41.

Finally, each type of argument must also be compared to the others and a determination made whether one type of argument may be overcome by a competing argument of a different type.  Id. at 91.  Often this issue is resolved by balancing the policies that are served by each type of argument. Id. at 154.  For example, where certainty and objectivity are the goals, a textual argument may carry more weight.  In contrast, where an issue invokes societal expectations, then a legal argument based on tradition may be the strongest argument.  Id. at 154. 
In short, our goal in writing briefs is to persuade the reader.  To identify, create and evaluate the types of available legal arguments for a given issue offers an effective way to reach this goal.

Author's Bio Statement:

LeAnn W. Nealey is a member of Butler, Snow, O'Mara, Stevens & Cannada, PLLC in the firm's Jackson, Mississippi office.  Her practice concentrates on appellate and written advocacy.  She is a member of the DRI Appellate Advocacy Committee, participating in the Publications and the Program subcommittees.

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