Appellate Practice
Appellate Practice
Overseeing Appellate Litigation:
The GCs Guide
PRESENTED BY
Doug Phillips/Roderick Walston/Kira Klatchko
Appellate Practice
Appeals are unique animals....
•The process is unfamiliar: we aren’t usually
disputing the facts, and w...
Appellate Practice
Appeals are unique animals....
•The appellate court is not a factfinder
•Trial is about proof – appeal ...
Appellate Practice
Appellate Courts, Like Trial Courts, Have a
Duty to Preserve Ethical Standards of Practice
•But, Appell...
Appellate Practice
Appellate Decisions May Have Far-
Reaching and Long-Lasting Consequences
•Published opinions may be for...
Appellate Practice
What does this mean for a GC?
•Reviewing appellate work requires a different
mindset
 How do we assess...
Appellate Practice
How do we assess chances of
winning?
•Ask the following:
 Is this an appeal from a final judgment/orde...
Appellate Practice
How do we assess chances of
winning?
•Is this an appeal from a final judgment/order?
 Are you the Appe...
Appellate Practice
How do we assess chances of
winning?
•Is this an appeal from a final judgment/order?
 Appeals are usua...
Appellate Practice
How do we assess chances of
winning?
•Is this an appeal from a final judgment/order?
 Appeals are usua...
Appellate Practice
How do we assess chances of
winning?
•Is this a writ or interlocutory appeal?
 Writs and interlocutory...
Appellate Practice
How do we assess chances of
winning?
•Is this a writ or interlocutory appeal?
 Writs and interlocutory...
Appellate Practice
How do we assess chances of
winning?
•How important is this issue, and what is the
standard of review?
...
Appellate Practice
The big picture
•How do we know if our case will have a long-
term impact/potential for publication?
•H...
Appellate Practice
How do we review counsel’s work,
and how much should it cost?
•When should we engage appellate counsel?...
Appellate Practice
How do we review counsel’s work,
and how much should it cost?
•What is appellate counsel looking for?
...
Appellate Practice
How do we review counsel’s work,
and how much should it cost?
•What is appellate counsel looking for?
...
Appellate Practice
How do we review counsel’s work,
and how much should it cost?
•What should appellate counsel tell you?
...
Appellate Practice
How do we review counsel’s work,
and how much should it cost?
•What should appellate counsel tell you?
...
Appellate Practice
How do we review counsel’s work,
and how much should it cost?
•What should appellate counsel tell you?
...
Appellate Practice
How do we review counsel’s work,
and how much should it cost?
•What should appellate counsel tell you?
...
Appellate Practice
How do we review counsel’s work,
and how much should it cost?
•How frequently should you expect an upda...
Appellate Practice
How do we review counsel’s work,
and how much should it cost?
•How frequently should you expect an upda...
Appellate Practice
Overseeing an appeal: The Process
Record
Preparation
Conflicts and
other
preliminary
forms
Settlement
c...
Appellate Practice
Overseeing a writ: The Process
Record
Preparation
Writ
Petition/Stay
Preliminary
Opposition
Court Order...
Appellate Practice
Miscellaneous tips
•Don’t assume appellate and trial counsel should
be the same person/same firm
 Appe...
Appellate Practice
Miscellaneous Tips
•Though appellate costs can be high, you
should question billing by more than two
at...
Appellate Practice
Miscellaneous Tips
•The attorney who drafts the brief/petition
should argue the case
 The person who d...
Appellate Practice
Concluding Comments
•Managing an appeal is simple if you
understand the appellate process and your
chan...
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Overseeing Appellate Litigation General Counsels Guide

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Overseeing Appellate Litigation General Counsels Guide

  1. 1. Appellate Practice
  2. 2. Appellate Practice Overseeing Appellate Litigation: The GCs Guide PRESENTED BY Doug Phillips/Roderick Walston/Kira Klatchko
  3. 3. Appellate Practice Appeals are unique animals.... •The process is unfamiliar: we aren’t usually disputing the facts, and we cannot alter those that surfaced at trial •The evidence is already in •Most of the time you already have a winner and a loser
  4. 4. Appellate Practice Appeals are unique animals.... •The appellate court is not a factfinder •Trial is about proof – appeal is about error •It isn’t enough to show error – error must be prejudicial
  5. 5. Appellate Practice Appellate Courts, Like Trial Courts, Have a Duty to Preserve Ethical Standards of Practice •But, Appellate Courts Have a Larger Role  Discouraging bad behavior at trial  Preventing bad behavior on appeal  Preventing similar problems for other litigants
  6. 6. Appellate Practice Appellate Decisions May Have Far- Reaching and Long-Lasting Consequences •Published opinions may be forever •Public censure and media exposure is likely •Adverse consequence to your client and other clients in the same field
  7. 7. Appellate Practice What does this mean for a GC? •Reviewing appellate work requires a different mindset  How do we assess chances of winning?  How do we know if our case will have a long-term impact/potential for publication?  How important is this issue to our case? Our client? Our other clients?  How do we review counsel’s work, and how much should it cost?
  8. 8. Appellate Practice How do we assess chances of winning? •Ask the following:  Is this an appeal from a final judgment/order?  Is this a writ or interlocutory appeal?
  9. 9. Appellate Practice How do we assess chances of winning? •Is this an appeal from a final judgment/order?  Are you the Appellant or the Respondent?  Appeals are usually unsuccessful • Of the 10,975 written opinions issued by California’s intermediate appellate courts during fiscal year 2004- 2005:  9,151 were affirmances,  1,198 were reversals,  and 262 were dismissed outright
  10. 10. Appellate Practice How do we assess chances of winning? •Is this an appeal from a final judgment/order?  Appeals are usually unsuccessful • Out of the 5,410 Petitions for Review filed in the California Supreme Court during fiscal year 2004-2005:  The Court issued only 125 written opinions
  11. 11. Appellate Practice How do we assess chances of winning? •Is this an appeal from a final judgment/order?  Appeals are usually unsuccessful • The trial court is affirmed in more than 85% of civil cases in California appellate courts • Most reversals occur in cases where the standard of review is de novo • It is very difficult to obtain a reversal on appeal where the standard of review is abuse of discretion or substantial evidence
  12. 12. Appellate Practice How do we assess chances of winning? •Is this a writ or interlocutory appeal?  Writs and interlocutory appeals are often more difficult to win • Writ procedure is arcane and requires a large amount of work in a short amount of time  Extraordinary writs are successful less than 8% of the time in California Courts • Interlocutory appeals are strictly limited in both state and federal courts  Most frequently come up with injunctive relief
  13. 13. Appellate Practice How do we assess chances of winning? •Is this a writ or interlocutory appeal?  Writs and interlocutory appeals are often more difficult to win • Writs and interlocutory appeals almost always involve the issue of stay  To stay or not to stay, to post a bond or not to post a bond, those are the infernal questions you will be confronted with  Appellate courts will look harshly upon litigants who file unmeritorious writs or interlocutory appeals in order to hold up trial court proceedings
  14. 14. Appellate Practice How do we assess chances of winning? •How important is this issue, and what is the standard of review?  Will you have an opportunity to contest the issue at a later time? • Consider waiting, you may not have a choice  Is the issue outcome determinative? • Are you contesting error or prejudicial error?  Is this a dispute over law or over fact?
  15. 15. Appellate Practice The big picture •How do we know if our case will have a long- term impact/potential for publication? •How important is this issue to our case? Our client? Our other clients?  Is this an issue of law that impacts a large number of litigants/potential litigants?  How much money is at stake?  Are there other published cases on the topic?  Do the courts agree on the law?  What do interest groups say? Are they watching your case?
  16. 16. Appellate Practice How do we review counsel’s work, and how much should it cost? •When should we engage appellate counsel?  Early in the litigation if you expect an appeal  Why? Appellate counsel is looking for error, and can advise on how to preserve it in the record.
  17. 17. Appellate Practice How do we review counsel’s work, and how much should it cost? •What is appellate counsel looking for?  Error on the part of the trial judge, error on the part of the opposing counsel/party, error on the part of the our litigators. • Litigators are disputing facts, making motions, fighting about jury instructions and discovery – appellate counsel should be preserving the record on appeal – if something isn’t in the record then it doesn’t exist on appeal.
  18. 18. Appellate Practice How do we review counsel’s work, and how much should it cost? •What is appellate counsel looking for?  How to avoid waiver on appeal • Issues not raised at trial are almost always waived on appeal  Deadlines • Appellate timelines and deadlines are markedly different from those at trial  In Federal practice, deadlines are more straightforward than in California, where they can be difficult to calculate (the NOA is jurisdictional!)
  19. 19. Appellate Practice How do we review counsel’s work, and how much should it cost? •What should appellate counsel tell you?  Deadlines: • When to file the Notice of Appeal or when to file the Petition for Writ • In California, when to designate a record • The anticipated briefing schedule  Will there be a mediation?  Will there be oral argument?  Are there special rules in the Circuit/District you’re in
  20. 20. Appellate Practice How do we review counsel’s work, and how much should it cost? •What should appellate counsel tell you?  Issues of Merit: • What error is alleged? • Should the error be raised by writ or appeal, or both? • What is the standard of review? • What are your chances for success?
  21. 21. Appellate Practice How do we review counsel’s work, and how much should it cost? •What should appellate counsel tell you?  Are you an interested non-party • Do you represent an interest group impacted by a recently published decision?  Should you seek depublication? • Are you interested in a case currently being considered by an appellate court?  Should you write an amicus letter/amicus brief?
  22. 22. Appellate Practice How do we review counsel’s work, and how much should it cost? •What should appellate counsel tell you?  Cost • Counsel should prepare a budget that includes all relevant deadlines, expected cost of record preparation, research, briefing, oral argument, and related motions for judicial notice
  23. 23. Appellate Practice How do we review counsel’s work, and how much should it cost? •How frequently should you expect an update?  Appeal: When the Notice of Appeal is filed, when the record is designated, when the mediation is set, when the briefing schedule is set, prior to briefs being filed. • In the 9th Circuit, the time between NOA and Opinion may exceed 2 years. • In California, dispensation times may vary, but average between 360-540 days.
  24. 24. Appellate Practice How do we review counsel’s work, and how much should it cost? •How frequently should you expect an update?  Writ: Prior to the Petition being filed, when/if an Answer/Response is filed, when/if the court orders argument, when the court issues its opinion or postcard rejection • Writs are resolved quickly, usually between 1 week and 3 months in California courts.
  25. 25. Appellate Practice Overseeing an appeal: The Process Record Preparation Conflicts and other preliminary forms Settlement conference procedure Motions Briefing Oral Argument Opinion Petition for Rehearing, Petition for Review (Depublication Request) Remittitur Attorney Fees Motion Notice of Appeal from Final Judgment or Order
  26. 26. Appellate Practice Overseeing a writ: The Process Record Preparation Writ Petition/Stay Preliminary Opposition Court Order (denial, Palma, alternative/OSC) Additional Briefing OSC Hearing Opinion Petition for Review (Depublication Request) Filing/Issuance of Writ Adverse order
  27. 27. Appellate Practice Miscellaneous tips •Don’t assume appellate and trial counsel should be the same person/same firm  Appellate attorneys view the facts in a different light and are better able to realistically assess the chances on appeal •Don’t assume trial counsel will inform you of appellate deadlines  Appellate deadlines differ from trial deadlines and are often jurisdictional, if you are interested in an appeal let counsel know as soon as possible
  28. 28. Appellate Practice Miscellaneous Tips •Though appellate costs can be high, you should question billing by more than two attorneys  Appellate Briefs and Writ Petitions are deserving of craftsmanship, they should not be compiled by 10 attorneys each of whom drafts one section • If your invoice lists more than 2 appellate attorneys, ask which one is actually responsible for writing your briefs
  29. 29. Appellate Practice Miscellaneous Tips •The attorney who drafts the brief/petition should argue the case  The person who drafts the main brief/petition is most knowledgeable about the appeal • The lead drafter is best suited to argue the case before the Court, and will need less time to prepare for oral argument than someone who is new to the case– that will translate into a direct cost-savings to the client
  30. 30. Appellate Practice Concluding Comments •Managing an appeal is simple if you understand the appellate process and your chances of success  Ask questions early and often  Demand a budget and a timeline  If you have particular concerns talk directly with the drafter

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